IPP sentences

This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.

Third Report of Session 2022–23

Author: Justice Committee

Related inquiry: Imprisonment for Public Protection (IPP) sentences

Date Published: 28 September 2022

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Contents

1 Introduction

1. Sentences of Imprisonment for Public Protection—commonly referred to as IPP sentences—are indeterminate sentences, as opposed to fixed-term or determinate sentences. They were introduced under the Criminal Justice Act 2003 (CJA 2003) and were designed to detain people in prison who posed a significant risk of causing serious harm to the public. They could be given to an offender who had committed one or more of a number of specified violent or sexual offences where the seriousness of the offence did not merit a life sentence. As a consequence of the way in which the original legislation was drafted, initially the sentence was applied much more widely than had been originally intended. In recognising this, in 2008 the Government at the time changed how IPP sentences could be applied, and after considerable controversy more generally about the sentences, they were abolished in 2012. This change did not apply retrospectively, meaning that the sentence is still being served by those who received an IPP sentence prior to its abolition.

2. An IPP sentence consists of three parts:

  • a minimum period required to be served before an offender can become eligible for parole, known as the ‘tariff’;
  • a subsequent unlimited period of custodial detention, until the offender can prove to the Parole Board that they are no longer a risk to the public; and
  • release from custody under a life licence, meaning that the offender could be returned to prison and continue to serve their IPP sentence in custody if they breach their licence conditions, commit any further offences or the probation service deems it appropriate for the protection of the public. An offender can have their life licence cancelled after 10 years from their initial release (this 10-year period does not restart if they are recalled).

3. Between 2005 and its abolition, 8,711 IPP sentences were imposed by the courts.1 As of 30 June 2022, there were 2,926 IPP prisoners in England and Wales:

  • 1,492 prisoners who have never been released; and
  • 1,434 prisoners who have been released but have subsequently been recalled to custody.2

4. Whilst there have been some efforts made in the last 10 years to reduce the IPP prison population, this Report argues that not enough has been done, and furthermore, that the problem is becoming more significant and pressing due to the increasing number of released IPP sentenced individuals being recalled back to prison, often not as a result of committing any further crimes. The problems caused by the continued operation of the sentence in relation to this cohort of offenders convicted before 3 December 2012 have been highlighted by a number of senior figures and experts within the criminal justice system and Parliament, as well as various criminal justice organisations and related campaign groups and will be addressed throughout this Report. We also note that there is a cohort of offenders that present a particular challenge in relation to public protection, and the need to be mindful of the concerns of victims who must not be forgotten.

Our inquiry

5. We launched our inquiry in September 2021, with the aim of examining the issues surrounding IPP sentences, and to identify possible legislative and policy solutions. We have proactively sought the perspective of all stakeholders affected by the existence of the IPP sentence. As part of our call for evidence we invited written submissions from serving IPP prisoners by post. We have also sought the perspective of victims of IPP offenders, including through victims’ charities and victim liaison officers. In November and December 2021, we held three public evidence sessions, including with representatives of the families of those serving IPP sentences, policy and legal experts, clinical professionals, Lord Blunkett (former Home Secretary), Lord Thomas of Cwmgiedd (former Lord Chief Justice of England and Wales), the Parole Board and the Government, including officials from HM Prison and Probation Service (HMPPS). We have also held private meetings and roundtables with affected parties including people serving the IPP sentence in the community, family members, legal professionals supporting IPP prisoners, parole board members, prison and probation staff and victims of IPP prisoners. We are very grateful to everyone who has engaged with our evidence-gathering.

6. Our call for evidence resulted in more written evidence than we have received for any previous inquiry conducted by the Committee. This has been a significant factor in the time it has taken to produce our recommendations and conclusions, which was longer than we anticipated. Due to the volume of handwritten responses, and our commitment at the outset to preserve the anonymity of individual submitters, we have not published all of the evidence we have received.3 However, all of the evidence has been used to inform the conclusions of this Report and the recommendations that we have made. Again, we thank everyone who has written to us in relation to our inquiry.

7. In this Report we first set out the history of the IPP sentence, and what we label as ‘the IPP problem’, by which we mean the unique set of circumstances and challenges caused by the introduction, revision, abolition and continued operation of the IPP sentence. We go on to set out the barriers to progression and release for IPP sentenced prisoners, first of all looking at prison-based barriers, and secondly at community barriers. Finally, we present our main recommendation, which is that the Government should conduct a resentencing exercise to address this problem.

2 The history of the IPP sentence

Introduction of the sentence

8. In 2002, the Government’s White Paper Justice for All proposed the introduction of a new sentence to “ensure that dangerous violent and sexual offenders stay in custody for as long as they present a risk to society”:

We want to ensure that the public are adequately protected from those offenders whose offences do not currently attract a maximum penalty of life imprisonment but who are nevertheless assessed as dangerous. We believe that such offenders should remain in custody until their risks are considered manageable in the community. For this reason we propose to develop an indeterminate sentence for sexual and violent offenders who have been assessed and considered dangerous.4

9. IPP sentences, including detention for public protection for offenders under the age of 18, were brought into effect on 4 April 2005 under the dangerous offender provisions contained in Chapter 5 of Part 12 of the CJA 2003. Sections 225 and 226 of the Act set out detailed sentencing provisions for people convicted of specified serious offences if the offender was dangerous, which required the court to impose either a life sentence or an IPP sentence. An offender was dangerous if the court assessed that there was “a significant risk to members of the public of serious harm occasioned by him of further specified offences”. Section 229 of the Act created a rebuttable presumption of dangerousness where the offender had previously been convicted of a specified offence in the UK. As the Court of Appeal set out in its judgment in R v Roberts, the CJA 2003 restricted the usual freedom of the courts to make an assessment of what constituted “dangerous”:

4. […] The CJA 2003 required the court to make the assumption of dangerousness for those over 18 if the offender had been convicted on an earlier occasion of a specified offence, unless it was unreasonable to do so. […]

5. Where the offender was found to be dangerous and over 18, the court was required to pass a sentence of IPP or life imprisonment. It is important to emphasise that the CJA 2003 removed all discretion from the court once it was found that the offender was dangerous. The sentence had to be IPP or life imprisonment.5

10. The IPP sentence was available to courts where an offender had been convicted of one of 96 specified ‘serious’ violent or sexual offences (offences which carried a maximum sentence of 10 years or more) and where the court considered that the offender posed a significant risk of serious harm in the future.6 The Sentencing Academy explain that a significant factor in why IPP sentences were imposed more frequently than the Government had anticipated was because:

[W]hen the legislation was first enacted, any offender convicted of one of these 96 offences was presumed to pose a significant risk of serious harm if they had ever previously been convicted of either one of the 96 ‘serious’ offences or a further 57 ‘specified’ offences (for which the maximum sentence was between two and seven years). Therefore, unless the court found it unreasonable to do so, where an offender was convicted of one of the serious offences and they had a previous conviction from one of the list of 153 specified offences, they had to consider the offender to be dangerous and impose an IPP sentence.7

As outlined in a later thematic review of IPPs, published by HM Chief Inspector of Prisons in October 2008, the consequence of the provisions was “an explosion” in the number of those receiving the new sentence, with a large number of “new, and resource-intensive, prisoners” entering the system.8

Criticism and abolition of the sentence

11. Following initial criticism of the sentence and its operation, the then Government conducted a review in 2007, which recommended improvements to the management of IPP prisoners.9 The “Lockyer Review” highlighted IPPs as an “area of urgent need”, and stressed the need to avoid a “one size fits all” solution to the more specific challenges facing IPPs.10 In response to criticism that the sentence was being poorly targeted, in 2008 the Government took steps to restore judicial discretion and introduced a new ‘seriousness threshold’. The CJA 2003 was amended so that, although a life sentence was still mandatory in some cases, judges were no longer required to impose an IPP sentence as an alternative to life. They could only impose an IPP sentence if one of two conditions was met:

  • the offender had previously been convicted of an offence listed in Schedule 15A of the CJA 2003 Act before committing the latest offence; or
  • the notional minimum term (i.e. the term the prisoner would have served had he received a determinate sentence) would have been at least two years.

12. In 2010 the then Prisons Minister, Crispin Blunt, stated that the Government had “inherit[ed] a very serious problem with IPP prisoners”, calling the status quo “not a defensible position”.11 In a press conference on sentencing reform in June 2011, the then Prime Minister, David Cameron, said:

We have inherited a system [of IPP sentences] that is unclear, inconsistent and uncertain. Unclear because actually a large proportion of the public don’t really know what indeterminate sentences are or how they work. Inconsistent because they can mean that two people who commit the same crime can end up getting very different punishments. And uncertain because victims and their families don’t have any certainty about the sentence that will be served or when their assailants will be let out.12

13. Further pressure to reform the sentence arose in 2012 when three individuals serving IPP sentences brought a case to the European Court of Human Rights. In the case of James, Wells and Lee v UK, the Court held unanimously that there had been a violation of Article 5 § 1 of the convention (protection from unlawful deprivation of liberty) “in respect of the applicants’ detention following the expiry of their tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses”.13 The Court found that the lack of resources prevented all three applicants from progressing through the prison system:

the stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired […] Further, once the applicants’ tariffs had expired, their detention was justified solely on the grounds of the risk they posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing.14

As a result, “their detention was arbitrary and therefore unlawful”.15 This case, which represented a culmination of other legal challenges, increased pressure for the abolition of the sentence.16

14. During the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO), the then Secretary of State for Justice set out why the Government believed IPP sentences to be unjust:

What is wrong is that indeterminate sentences are unfair between prisoner and prisoner. The Parole Board has been given the task of trying to see whether a prisoner could prove that he is no longer a risk to the public. It is almost impossible for the prisoner to prove that, so it is something of a lottery and hardly any are released. We therefore face an impossible problem.17

He went on to note that in the case of some IPP offenders their co-accused who committed the same crime and were given a determinate sentence were released long ago: “That is unjust to the people in question and completely inconsistent with the policy of punishment, reforms and rehabilitation, which has widespread support”.18

15. IPP sentences were abolished by section 123 of the LASPO Act 2012 in December 2012 and were effectively replaced with new provisions for life sentences to be imposed on conviction for a second serious offence and a new provision for extended sentences.19 However, although there was some pressure during the passage of the Bill to address the issue of existing IPP prisoners, abolition of the sentence was not applied to individuals convicted before 3 December 2012.20 The Coalition Government’s argument at the time was:

We do not think that it is right or appropriate retrospectively to alter sentences that were lawfully imposed by the court simply because a policy decision has now been taken to repeal that sentence. That is what would be required to make release automatic for those prisoners. Generally, sentences already imposed are not substantively altered by subsequent legislation. In this case, it would be particularly difficult, as the court would have to impose the sentence with risk management issues in mind.21

16. In effect this meant that although IPP sentences had been abolished prospectively, they remained in force for the large number of existing IPP prisoners. A total of 8,711 IPP sentences were imposed by the criminal courts between 2005 and 2013.22 The number of prisoners serving IPP sentences reached a peak of over 6,000 when the sentence was abolished in 2012. Some have criticised the Government’s rationale at the time for not retrospectively applying the changes. For example, the Centre for Crime and Justice Studies told us:

The pragmatic case for abolition was secured by reference to the potentially exponential rise in prisoners subjected to a failing system acknowledged not to be ‘defensible’, as the Prisons Minister himself put it; less consideration seems to have been given to the fate of existing prisoners who had struggled under the restrictions. The logic of abolition was therefore compromised; the injustice of their treatment prior to abolition was never satisfactorily addressed. Had capital punishment been abolished in the same fashion, would the previously sentenced have been hanged nonetheless?23

17. Whilst LASPO 2012 did not abolish the IPP sentence retrospectively, it did, in section 128, confer power on the Secretary of State to change the release test by statutory instrument. The Parole Board release test is set out in section 28 of the Crime (Sentences) Act 1997. After an IPP prisoner has served their tariff, they may require the Secretary of State to refer their case to the Parole Board; the Board must not direct the prisoner be released “unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.24 For the Parole Board to be “satisfied” that the ground is made out is a high threshold that requires “a real certainty based on strong evidence”;25 and it is for the prisoner to prove that the ground is made out. The power in section 128 allows the Secretary of State to amend the test by creating a presumption of release to replace the presumption of continued detention, so that the Parole Board must grant release if (or unless) specified requirements are met. This would shift the burden of proof from the prisoner (to prove they are not dangerous) and onto the Secretary of State (to prove that they are). This power has not yet been used.

Abolition to present day

18. The problems caused by the continued operation of the IPP sentence since 2012 have been recognised and acted upon by successive governments. Problems have continued regarding access to accredited courses for prisoners, as highlighted by a National Audit Office report in 2013, as well as delays to the parole process.26 Organisations such as the Prison Reform Trust and the Howard League continued to highlight the damaging effects of the sentence, both to individuals and to wider confidence in the prison system. For example, when the Howard League surveyed prison governors about IPPs in 2013, 43% reported that the sentence reduced the credibility of prison staff because they were not seen as fair; 42% were dissatisfied with their job because they could not adequately support prisoners on IPP sentences, and 37% felt that they had to deal with worse behaviour among prisoners because of the sentence.27

19. Furthermore, a series of Justice Secretaries has acknowledged flaws with the original IPP sentence and problems with the management of offenders serving the sentence. In April 2016, Michael Gove, then Lord Chancellor and Secretary of State for Justice, wrote to our predecessor Committee setting out initiatives to help IPP prisoners progress towards release.28 In May 2016, he also commissioned the newly appointed Chair of the Parole Board, Nick Hardwick, to “develop an improved approach” to IPP prisoners.29 Later that month, another former Lord Chancellor and Secretary of State for Justice, Ken Clarke, told Radio 4’s Today programme:

It is quite absurd that there are people who might be [in prison] for the rest of their lives, in theory, who are serving a sentence which Parliament agreed to get rid of because it hadn’t worked as anybody intended. […] The trouble is this ridiculous burden on the Parole Board of saying they can only release people if it’s proved to them that they’re not really a danger to the public. [ … ] No prisoner can prove that—you never know when people are going to lose control, what’s going to happen to them when they’re released.30

20. In July 2016 Nick Hardwick published a statement on existing IPP prisoners in which he estimated that changes to the parole process, such as reducing delays in holding hearings, could reduce the number of IPPs to about 1,500 by 2020.31 He said that if ministers wanted to go further and faster than that, it would require further legislative or policy changes, with possible options including:

  • Revising the risk test so that prisoners only continue to be detained if there is evidence they remain a danger to the public.
  • Introducing that measure just for ’short tariff’ IPPs, i.e. those who received a tariff of two years or less but remain in prison long after their tariff has expired because they are unable to prove their risk has reduced.
  • Taking executive action to release IPP prisoners who have now served longer than the maximum current sentence for their offence.32

Nick Hardwick also warned about the growing problem of IPP prisoners being recalled to prison following their release. In a letter to the then Justice Secretary he stated that:

Ministers might also want to look urgently and carefully at the issues and risks around IPP recalls. Under the current law, thousands of IPPs who are released by the Board will face recall for decades to come. I am concerned about the proportionality of this and whether in future the problem with IPP first releases will be replaced by a problem with IPP recalls.33

21. In November 2016, the Parole Board published its strategy for 2016–20, which included an overarching aim to “work with partners to ensure that by the end of 2017 the majority of IPP prisoners have been safely released, or where risk is not judged to be manageable in the community to have clear plans in place that will enable them to progress”. Part of the policy changes introduced to tackle the delays to the parole process included allowing the release of IPP prisoners “on the papers” (i.e. without an oral hearing).

22. Also in 2016, Michael Gove, then Lord Chancellor and Secretary of State for Justice, gave a speech in which he proposed using the power of executive clemency to release IPP prisoners in certain cases:

In terms of pure justice and fairness, there are far too many prisoners, who were sentenced under the IPP […] provisions who have served far longer than the gravity of their offence requires and who should be released. […]

I 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.34

23. The speech coincided with the publication of a thematic report on IPP sentences by HM Chief Inspector of Prisons. The Chief Inspector, Peter Clarke, said it was “widely accepted that implementation of the sentence was flawed” and that “decisive action” was needed for three main reasons:

Firstly, for many of the IPP prisoners, it is not clear that holding them well beyond their end-of-tariff date is necessarily in the interests of public protection, and therefore there are issues of fairness and justice. Secondly, the cost to the public purse of continuing to hold the high numbers of IPP prisoners is significant. Thirdly, the pressures IPPs exert on the system in terms of risk management activity, demand for offending behaviour programmes and parole processes is significant. Resources are being stretched increasingly thinly and there are risks that prisoners will struggle to access the support they need and that delays will increase still further.35

24. In February 2017, Liz Truss, then Lord Chancellor and Secretary of State for Justice, acknowledged the specific problems around the IPP sentence:

Of course, public protection must be the number one priority. But it seems unjust that someone sentenced in 2010 can remain in prison for years when—if sentenced today—they might have an automatic release date.36

25. In November 2017, her successor, David Lidington, at a speech on the Parole Board’s 50th anniversary stated:

Looking forward, the big challenge, the question we need to ask ourselves, is whether there is a way to carry on cutting the numbers of IPP prisoners in custody once what one might term the ‘easier’ cases have been dealt with and there remains to us a harder core of very challenging, complex and frankly very risky cases of people still inside prisons.37

26. There have continued to be concerted efforts by the HM Prison and Probation Service and the Parole Board to progress IPP cases. As a result, the number of IPP prisoners fell from a peak of 6,080 in 2012 to 2,884 by March 2018. However, Martin Jones, Chief Executive of the Parole Board stated:

without further legislative change the legacy of IPP prisoners will remain for many years to come, not least because the number of IPP prisoners recalled to custody continues to rise. I also expect the rate of progression to slow down as the number of IPP prisoners in the system falls.38

27. In 2018 our predecessor Committee considered the IPP sentence as part of its inquiry, Prison population 2022: planning for the future. Whilst recognising the efforts and improvements made to ensuring IPP prisoners were managed more effectively towards release, that Committee raised concerns about the disproportionate rates of self-harm and the high rates of recall. It concluded:

Whilst it is almost certain that there will remain a hard core of IPP prisoners who present a significant risk and may not be safe to release, the aim of the system should be to ensure that most IPP prisoners are safely managed back into communities at the earliest opportunity. […] As part of its review of sentencing the Ministry should consult on legislative solutions to both release and recall of indeterminate sentenced prisoners to bring about sentencing certainty.39

In its response the Government noted the Committee’s support for legislating, but did not make any commitments to considering any legislative measures, citing the success of measures within the joint HMPPS/Parole Board action plan.40

28. There have been concerted efforts from Members across both Houses to press the Government for further action on remedying the problems caused by IPP sentences.41 In 2019, the then Justice Secretary, Robert Buckland KC MP, did not commit to any new legislative measures but acknowledged that it would be possible to change the law to effectively re-sentence offenders. More recently there have been efforts in the House of Lords to press the Government to act in relation to IPP sentences. A number of amendments were tabled, and supported, by Peers across the benches during the passage of the Police, Crime, Sentencing and Courts (PCSC) Bill. In a speech relating to an amendment moved at Committee stage on the 15 November 2021 Lord Blunkett argued:

We have to do something for the sake of the individuals and their families, and for the safety of the community, because the longer they are in prison on a suspended animation sentence or on licence, the more likely they are to find themselves unable to rehabilitate and live a normal life. When that happens, they are more likely to commit a crime. I got it wrong. The Government now have the chance to get it right.42

IPP sentences today

29. Whilst IPP sentences were abolished nearly 10 years ago, there are still a considerable number of individuals in prison who have never been released, and a significant and growing number of individuals who have been released and then recalled back to prison. The MoJ provides quarterly figures on the prison population, including IPP prisoners. As of 30 June 2022, there were 2,926 IPP prisoners in England and Wales: 1,492 unreleased IPP prisoners and 1,434 who have been released but later recalled to custody. Of the current unreleased population:

  • 1,442 prisoners (97%) have passed their tariff expiry date;
  • 231 prisoners originally received a tariff of less than 2 years. 188 of these are now at least 10 years over their tariff;
  • 606 prisoners originally received a tariff of between 2 and 4 years. 351 of these are now at least 10 years over their tariff;
  • 608 prisoners are at least 10 years over their original tariff.43

30. Figure 1 shows the IPP prison population from 2005 to 2021, separating unreleased IPP prisoners and those who are back in custody following a recall. Table 1 sets out the Government’s estimates for the number of unreleased and recalled prisoners over the coming years. It is expected that the recalled population will soon exceed the number of prisoners who have never been released. In the following two chapters, we consider both populations and the challenges that exist in securing release, and staying out of prison once released.

Figure 1: IPP Prisoners on 30 June of each year since 2005, including recallees from 2015 onwards

Table 1: Projected unreleased and recalled IPP prison population

IPP Population Projection

IPP Recall Population Projection

Total

30/06/2023

1,300

1,900

3,200

30/06/2024

1,100

2,100

3,200

30/06/2025

1,000

2,300

3,300

31/03/2026

900

2,400

3,300

3 Prison-based barriers to progression

31. Many IPP prisoners, both those who have never been released and those who have been recalled, will struggle to progress through their sentence and onto release. The Association of Prison Lawyers summarised why IPP prisoners may fail to progress through their sentence:

Lack of resources, very little progression within custody, becoming institutionalised, and a lack of assistance after many years served within prison. Access to risk reduction work and mental health support is a continuing challenge. There is only very limited availability of psychology interventions and assessments. These individuals are institutionalised and usually have complex mental health needs […] Such people have lost hope and their behaviour has declined to the point that probation will not support release.44

32. Napo reiterated the challenges that exist for IPP prisoners in securing release:

Across England and Wales there are not enough programmes or specialist units (i.e. PIPEs) in each region of England and Wales. This prevents prisoners from completing sentence plans whilst in custody and in turn therefore not passing the Parole Board test for release. A lack of psychologists to complete assessments adds further delay. For a myriad of reasons there is too great a wait to transfer between prisons (especially Cat Ds). With regards to direct release, too few AP bed spaces (especially PIPEs in certain parts of the country).45

33. Many of the IPP prisoners who remain in prison after many years have become the most complex cases.46 The MoJ’s evidence to our inquiry, however, asserted that there were no barriers preventing their release other than the Parole Board’s statutory release test, and cited the reduction of the IPP population over time as demonstrating the success of its IPP Action Plan.47

The IPP Action Plan

34. Since 2016, the Government’s main approach to addressing the IPP issue has been through its IPP Action Plan, which is focused on the rehabilitation of IPP prisoners by reducing their risk.48 The Action Plan is described by the MoJ as an iterative document, that is reviewed continually and has evolved over the years to address newly identified challenges. Dr Bailey, National Lead Psychologist, HM Prison and Probation Service, told us “the solution we had six months ago might not be the solution we need today. It is kept under constant review”.49 In 2016, the Plan’s focus was on ensuring the parole system was more efficient; in 2019 its focus had shifted to improving progression and reducing waiting lists and times for accredited programmes. The current version of the Action Plan includes 15 workstreams covering, for example, IPP progression panels, progressive transfers, and improving progression prospects for IPP prisoners with significant mental health issues.

35. The Government has argued that the success of the action plan is evidenced by the reduction of the unreleased IPP prison population. Kit Malthouse MP, then Minister of State (Minister for Crime and Policing), told us: “If you look at the original numbers, since 2016, the start of the action plan, I think there have been 1,679 reviews. During that time, 440 achieved release and 474 had a progressive move to open conditions. That gives you a scale and sense of the activity over the years in what is happening, so you can see where we might go over the next five or 10 years”.50

36. It is worth noting that, based on the figures cited by the then Minister, only 26% of IPP prisoners reviewed have achieved release since 2016 (and we do not know how many of this number have been subsequently recalled), and only 28% have achieved a move to open conditions. We can assume, therefore, that the remaining individuals were not successful in achieving release or a move to open conditions. In other words, almost half (46%) of reviews resulted in the individual remaining in prison. Whilst we were told that the action plan is regularly reviewed, it is not clear how effectively the plan’s performance is monitored and evaluated. The 2021 action plan includes 15 workstreams, each with a brief description.51 The workstream descriptions include actions currently underway or planned; however, they do not include performance metrics or timescales, and accountability for each workstream is unclear. Furthermore, the plan does not include intended outcomes for each workstream or overall objectives. In contrast, other action plans produced by the MoJ, such as the 2012 Restorative Justice Action Plan52 and the SME Action Plan 2018–2022,53 contain considerably more detail.

37. We asked for more transparency around the IPP Action Plan’s performance metrics, such as the speed at which outcomes are delivered from the case reviews. Dr Bailey told us that the Government has “never had a central data source for a lot of that [information], but it has improved quite a lot over Covid”.54 Francesca Cooney, who has worked in prisons since 1995, including as a prison inspector, suggested that “It would be useful for the MoJ and HMPPS to update and evaluate the effectiveness of the steps they have already taken regarding IPP sentences”, including progress against the action plan.55

38. Given the extensive and complex nature of the challenges faced by IPP sentenced individuals, we find the absence of detail in the IPP Action Plan surprising. It lacks a clear strategic priority and ownership, as well as operational detail, timeframes, and performance measures.

39. We recommend the MoJ and HMPPS develop a new action plan, which should include clear performance measures for each of its workstreams. The new action plan should also, against each workstream, include an accountable owner for the workstream, and a timeframe for completion of each workstream activity so that there can be greater accountability and scrutiny. A new version of the IPP Action Plan should be published by the end of Q1 2023, with a report on the operation of the plan and any revisions to it published annually thereafter.

The psychological harm of IPP sentences

40. The harm caused by the IPP sentence was evidenced to us by a number of contributors to our inquiry, including those serving IPP sentences, their family members and professionals with experience of working with IPP sentenced individuals (either in custody or in the community). Many of the submissions we received from IPP sentenced prisoners referred to a deterioration in their mental health.56 One prisoner, who received an IPP sentence when they were under 18 years old, wrote:

It’s ruined my mental health. Prior to prison I was ‘normal’, never self-harmed, took drugs, had only ‘issues’ now my arms are covered in scars, from cutting. I battled a 5-year addiction to prescription drugs. I am paranoid a lot. I isolate myself because making friends you know will get out and leave you behind is more painful than being alone. What’s more, I don’t care anymore.57

41. Dr Maganty, a Consultant Forensic Psychiatrist, who has worked with IPP prisoners since the creation of the sentence, told us that from its inception, both sentenced individuals and psychological professionals did not know what the sentence was and what the implications were for such a sentence. He notes that, “they [IPP sentenced prisoners] came in on short tariffs and would still be there after the tariff was finished, in a local prison. They thought they were going to be released and we [psychological professionals] presumed they would be […]”.58

42. Dr Maganty went on to note that with time, and a better understanding of the implications of the sentence, there was a deterioration in the presentation and mental health of people on IPP sentences, from being initially not severely mentally ill to having increasing mental health illness. He told us that “Their clinical presentation is increasingly akin to those who have been wrongfully convicted”59 and went on to note that the circumstances surrounding the sentence “led to a sense of helplessness and a lot of them have become institutionalised […] It has become very difficult for them to move forward”.60

43. This aligned with other evidence we received from clinical experts who have worked directly with IPP prisoners. In response to our call for evidence we received a joint submission from 50 psychologists, psychiatrists and psychotherapists who have experience working with people serving the IPP sentence. The submission sets out “grave concern about the psychological impact of the IPP sentence, and our profession’s involvement in it”. It makes three key assertions about the IPP sentence:

a) That the IPP sentence is a “psy” sentence and that its legitimacy rests on the validity of psychological practices, and on the ability to accurately understand and predict risk.

b) That the IPP sentence undermines the ability of psychological professionals to carry out psychological practices, for example by pushing people serving IPP sentences towards coping strategies that exclude them from receiving help and making it more difficult to detect genuine signs of risk.

c) That the IPP sentence is psychologically harmful as evidenced by the emotional and mental deterioration of IPP prisoners when they enter the post-tariff stage of their sentence and the disproportionately high self-harm rate.61

44. The emotional and mental deterioration of those serving IPP sentences is further evidenced by the high levels of self-harm and suicide rates among this group. Suicidal thinking and suicide attempts featured frequently in the testimonies of those serving the IPP sentence in prison, with many citing the sentence itself as a major contributory factor.62 Rates of self-harm amongst IPP prisoners are high. In 2020, a total of 2,066 self-harm incidents were recorded. The Independent Advisory Panel on Deaths in Custody wrote that “IPP prisoners have repeatedly been identified as at a higher risk of suicide or self-harm than those in the general prison population”.63 In 2016, the Prison Reform Trust reported that for every 1,000 prisoners serving an IPP sentence, there were 550 incidents of self-harm. This compared with 324 incidents of self-harm per 1,000 prisoners serving a determinate sentence and was more than twice the rate of those serving a life sentence.64 In 2019, the Independent Advisory Panel on Deaths in Custody highlighted particular concern about rates of self-harm amongst women serving an IPP sentence; its analysis found that their self-harm rate was at least double that of other women in prison and over ten times the national average within the general female population.65 Table 2 shows the levels of self-harm among IPP prisoners between 2012 and 2020.

Table 2: Number of self-harm incidents among IPP prisoners from 2012–2020

Year

2012

2013

2014

2015

2016

2017

2018

2019

2020

Males

1,654

1,736

1,778

2,183

2,370

2,636

2,690

2,642

1,815

Females

622

425

365

354

503

288

334

236

251

Total

2,276

2,161

2,143

2,537

2,873

2,924

3,024

2,878

2,066

Source: IAPDC, Safety in Custody Statistics, England and Wales: Deaths in Prison Custody to March 2021, Assaults and Self-harm

45. The Prison Reform Trust’s research into the experiences of individuals recalled under the IPP sentence found that IPP prisoners were over two-and-a-half times more likely to harm themselves than others in the prison population.66 Sue McAllister CB, Prisons and Probation Ombudsman (PPO), told us that between 2007 and 2018 the PPO investigated 54 self-inflicted deaths of prisoners serving IPP sentences, finding that:

In cases where IPP issues have influenced self-harm and suicide risk this often stemmed from the uncertainty inherent in the sentence. Due to release being conditional on parole, there is no way for a prisoner to know when, if ever, they will be released. In one case a prisoner, Mr F, was recalled having been released after his IPP tariff. Shortly after being recalled, Mr. F spoke with his community offender manager and asked how long he would remain in prison. They informed him that due to his sentence they were unable to predict when he would be released. Mr. F killed himself that afternoon. While this was not the only contributing factor in his suicide it was significant.67

46. The Independent Advisory Panel on Deaths in Custody (IAPDC) state that as of May 2021, of the 250 IPP prisoners who have died in custody since the sentence came into effect, 65 had taken their own lives. It notes that whilst the number is high, the figures involved are too small to draw any statistically significant conclusions and to understand whether IPP prisoners die disproportionately to prisoners on other sentences.68 The IAPDC, and others noted that investigations into individual deaths have drawn attention to the impact IPP sentences have on worsening mental health which can lead to suicide.

47. One example of this is the case of Tommy Nicol. He took his own life in 2015 following a second refusal from the Parole Board. He served 6 years of an IPP sentence with a 4-year tariff and hung himself in HMP The Mount after spending “an extended period of time in both segregation and an unfurnished cell, having been denied access to any mental health support”.69 Donna Mooney, Tommy’s sister, told us:

Tommy referred to the sentence as ‘mental torture’. A sentence that keeps you in prison with no idea if you will ever be released, with ever changing expectations, with a system that has no clear structure in place for the needs of the IPP sentence, with changing expectations and approaches within each individual establishment, it is no wonder that the self-harm and suicide rates of those serving this sentence are much higher than any other type of sentence.70

48. Deborah Coles. Executive Director of INQUEST, commenting on the 2018 inquest into the self-inflicted death of Tommy Nicol, noted that “[t]he inquest heard evidence of an abhorrent lack of care concerning Tommy’s deteriorating mental health. He was left alone and distressed in an unfurnished cell, already two years over his sentence. A forensic psychiatrist said he was almost certain that the IPP sentence more than minimally contributed to his death”.71

Psychological harm and the assessment of risk

49. Given the psychological harm that has ensued as a result of the sentence and conditions attached to it, many have argued that assessing risk is more complicated than is the case for other prisoners. Dr Maganty described the sentence and its mental health impact as a “vicious cycle”, due to the fact that mental illness is perceived as a risk factor and therefore when preparing reports for, or giving evidence to, Parole Boards it must be considered. This means that someone may be deemed too high risk to be released based on their current mental health presentation, rather than based on their original offence.72 One IPP sentenced prisoner who submitted evidence to our inquiry wrote that, despite experiencing poor mental health, “I don’t speak to staff as any mention of a mental health issue goes on your prison record and will be brought up at board and can block release. The truth of it is we are all suffering from mental health problems because of the sentence but we are frightened to speak up”.73

50. Professor Graham Towl, a former head of HMPPS Psychology Services, highlighted the problems caused by conflating risk with mental health need:

We know that if people do not have control over their lives, or have less control over their lives, that is associated with less good mental health outcomes in general terms. People function better when they have some controls over their lives. This is a group where we have systematically prevented that at a structural level. We anticipate that there would be difficulties with mental health. One of my concerns about that is that sometimes risk and need get conflated. For example, to me, if someone self-harms, that is communicating to me a need that they have […] To have no prospect of when they will be leaving prison or not, all that uncertainty and managing that and so on, is bound to have a negative effect on mental health. That would be the case for any of us at some level.74

51. Dr Harry Annison, Associate Professor at Southampton Law School, described the IPP sentence as iatrogenic, meaning that the sentence, which was intended to be helpful (in that it was to lead to the rehabilitation of some of the most dangerous offenders), has in fact, in the majority of cases, proved to be more harmful and counter-productive and has led to the behavioural and mental deterioration of many IPPs.75 Dr Annison further stated that:

It is thus crucial that relevant criminal justice practitioners understand that their role as regards achieving the successful release and resettlement of many sentenced to IPP is to help those individuals to overcome the institutionalisation, mental health deterioration and damaged faith in authority that have resulted from their uncertainty of their indeterminate imprisonment, within prison conditions that have been described as ‘deeply troubling’. Put bluntly, to focus simply on ‘risk’ would be entirely to misunderstand the context of the IPP sentence and the experiences of the majority of those sentenced to it.

Access to mental health support

52. The psychological harm of the IPP sentence on individuals is profound, and many IPP prisoners have subsequently developed mental health needs as demonstrated above. Dr Maganty told us that amongst those IPP prisoners who have never been released, there are “individuals who are severely traumatised and are mentally ill”.76

53. Witnesses to our inquiry set out some of the challenges that IPP prisoners face when seeking mental health support. The charity, Women in Prison, told us that “[i]ndeterminacy affects the mental health and wellbeing of people serving IPP sentences, excludes sources of support which are only available for those with a release date, and removes any sense of administrative and practical urgency in terms of ensuring progression through a sentence”.77 INQUEST stated that “despite their vulnerability, IPP prisoners are not always accurately assessed as needing mental health support and sometimes receive inadequate care or none whatsoever”.78

54. Some prisoners will become so mentally ill whilst in prison that they will require a transfer to a secure hospital. Sentenced prisoners may be transferred from prison to hospital by the Secretary of State for treatment under section 47 of the Mental Health Act 1983. In 2019 (the latest year for which data is available), 276 IPP prisoners were residing in secure hospitals, representing just under 6% of the total number of prisoners residing in secure hospitals.79 The Howard League note that “[t]here are a number of people serving IPP sentences who are seriously unwell and have either become stuck in hospital or should not be in prison, as well as those who have simply not had sufficient support in custody or in terms of release planning”.80 It goes on to note that “some of these people ought to have received a restricted hospital order, rather than an IPP sentence, at the point of sentence”.81

55. Some of the evidence we received suggested that, for those IPP prisoners who are severely mentally unwell, transfer to a secure hospital can be highly beneficial for both their wellbeing and their progression. One IPP sentenced prisoner described being sectioned to a psychiatric secure hospital as “one of the best things that happened to me in prison […] In hospital, I am treated like a person and they show me trust to move forward”.82 Dr Maganty told us that, for “the less severe end of the spectrum, especially non-sex offending individuals”, therapeutic settings in an in-patient hospital can see a success rate of more than 50% (where success is defined as someone being discharged into the community, committing no further offences and requiring no further return to hospital).83 Martin Jones, the Chief Executive of the Parole Board, agreed that “There are some people who move into a hospital for their mental health and, once they have completed treatment and they are well, they are in a pretty good position to be released at the end of that”.84

56. We also heard that access to secure hospitals can be difficult. Dr Maganty explained that “We have information as to why a hospital, or a therapeutic pathway akin to an NHS hospital, can be very easily successful, but the difficulty is availability and how the secure hospitals, including mine, end up screening individuals. For example, if you are an IPP prisoner, you would not get ahead in the queue; you would be in the same queue as everybody else”.85 UNGRIPP found that those transferred to a secure hospital “reported a more positive treatment service” but that access “was not rapid”.86 The Association of Prison Lawyers also wrote that “Access to risk reduction work and mental health support is a continuing challenge. There is only very limited availability of psychology interventions and assessments”.87

57. Not everyone who is transferred to a secure hospital will subsequently be released from that setting. Caroline Corby, Chair of the Parole Board, told us that those people who were returned to prison from the mental health services, provided their period of punishment has been served, “come quickly into the parole process”. She added that there have previously been long delays between a return to prison and the parole process, which can exacerbate the prisoner’s mental health and perhaps affect their parole hearing.88 It is not clear what support is offered to those prisoners who have been transferred to hospital from prison under section, particularly in the cases where post-tariff IPPs, after a period of treatment, are deemed to be no longer detainable under the Mental Health Act 1983, but where they do not go on to meet the Parole Board’s test for release. It appears that this may be a particularly risky time in terms of mental health relapse or decline in behaviour.

58. The psychological harm caused by IPP sentences is a considerable barrier to progression for some IPP prisoners. The indefinite nature of the sentence has contributed to feelings of hopelessness and despair that has resulted in high levels of self-harm and some suicides within the IPP population. In addition to this, IPP prisoners distrust the people and services that are necessary to support their progression. In identifying solutions to the IPP problem, the MoJ, HMPPS and Parole Board must acknowledge the psychological harm caused by the IPP sentence, and the challenges this presents regarding progression. The MoJ and HMPPS should also set out how they intend to improve access to mental health support for IPP prisoners, including transfers to secure hospitals and therapeutic settings.

59. Additionally, there are a small number of mentally unwell prisoners who are subsequently transferred to a secure mental hospital. For these prisoners, the process for post-tariff release is more complex, and we are not clear what support is offered to those who, after a period of treatment, are no longer deemed detainable under the Mental Health Act 1983, but do not go on to meet the Parole Board’s test for release, and are then transferred back to prison from the secure hospital. The MoJ, HMPPS and the Parole Board should set out what support is available to those prisoners who are remitted back to prison after a period of time spent under section in a secure hospital, and how they are supported to progress in their sentence.

HMPPS Psychology Services

60. Those on IPP sentences are required to demonstrate that they no longer pose a risk to the public in order to be considered by the Parole Board for release. HMPPS Psychology Services play an essential role in supporting offenders to reduce risk through various means, including the assessment of risk by professionals, as directed by the Parole Board or an individual’s solicitor; and designing and delivering Offender Behaviour Programmes, Therapeutic Communities, Psychologically Informed Environments, and the Offender Personality Disorder (OPD) Pathway. Psychology services are distinct to mental health care within prison, although individual professionals (psychiatrists, psychologists etc.) may work across both.89

Offender Behaviour Programmes and interventions

61. Offender behaviour programmes and interventions aim to change the thinking, attitudes and behaviours which may lead people to reoffend. Programmes and interventions are primarily delivered in groups, but one-to-one provision is available in some circumstances.90 HMPPS offers some accredited programmes, which it states are based on the best available evidence, monitored to make sure they are delivered as intended, and evaluated to show outcomes.91 The Correctional Services Advice and Accreditation Panel (CSAAP) helps HMPPS to accredit programmes by reviewing programme design, quality assurance procedures and findings, and programme evaluations. CSAAP members are a mix of academics and practitioners, including criminologists, psychiatrists, psychologists, and sociologists. They review programmes against a set of criteria, drawn from the principles of effective interventions.92

62. Offender behaviour programmes and interventions are a central part of the IPP sentence and are a primary means in which an IPP prisoner can demonstrate rehabilitation and risk reduction.93 However, a number of witnesses have expressed concern about the quality, appropriateness and accessibility of these programmes. Dr Maganty told us that the programmes being offered to IPP prisoners were not evidence-based. He argued that the ineffectiveness of the programmes was a central factor in mental health deterioration of IPPs, as they offered the hope of rehabilitation without being able to deliver it.94 The joint submission from 50 ‘psy’ professionals stated that “[f]ollowing the huge national upscaling, programmes have performed much less well in recent years. The two most recent evaluations of programmes developed by HMPPS—the Sex Offender Treatment Programme and RESOLVE—showed little-to-no effect on reoffending”.95 The campaign group, UNGRIPP, told us:

We believe that the growing evidence for the ineffectiveness of offending behaviour programmes should be taken very seriously in light of the IPP sentence. While the official guidance is that they are neither necessary nor sufficient for release, in practice many people tell us that officials recommend continued imprisonment on the basis that they ‘may benefit’ from completing an additional programme. If a person’s freedom is to rely on a structured intervention, those interventions should have a very strong evidence base.96

63. Many have expressed their concerns that, generally, there is an over-reliance on offender behaviour programmes to determine risk, and that this has led to a significant barrier in sentence progression, particularly when, as the trade union Napo, told us: “there are wildly varying approaches to risk adopted from one [Parole Board] Panel to the next”.97 The campaign group, Progressing Prisoners Maintaining Innocence, told us:

The best currently available evidence indicates that there are ‘modest effects at best from psychological interventions delivered in prison’ […] The Board has, to date, failed to give adequate attention to these and similar research findings and a useful start could be made if the Board’s guidelines indicated that, for IPP prisoners, greater weight should be given to the prisoner’s post-release management plan rather than, as at present, to evidence of risk-reduction achieved through pre-release interventions.98

64. In addition to these concerns, evidence we received was highly critical of the development of what was characterised as a commercial “programmes industry”, at the expense of other forms of potentially more effective risk treatment work.99 Professor Graham Towl, former Chief Psychologist at the MoJ, told us:

The latest publicly available evidence shows that the programmes [the CSAAP] has ‘accredited’ on violence and sex offending have failed. The ‘accredited’ sex offenders’ ‘core’ and ‘extended’ courses have been found to increase the risk of reconviction. This suggests that the panel has not acted as an effective check against the implementation of inappropriate and ineffective risk treatment work.100

65. Professor Graham Towl also raised concern that there is a lack of transparency and scrutiny surrounding the programmes, and that the CSAAP is discredited in terms of its capacity to advise successfully on programmes to reduce the risk of violence of sex offending. He told us: “the formation and operation of the CSAAP is structurally unfit for purpose. It should be dispensed with”.101 Dr Jo Bailey OBE, HMPPS National Lead Psychologist, also recognised that there were concerns about transparency.102

Availability and access to courses

66. We heard from the Rt Hon. the Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales (2013–2017), that, following the introduction of the IPP sentence, “[i]t became apparent very quickly that there weren’t the places in the lifer prisons […] to cope with the influx, and there were not the courses available”.103 Evidence suggests that the availability of appropriate courses in prison for IPP prisoners remains limited, with many noting that waiting lists for courses are long, appropriate courses are not available in all prisons and other prisoners are prioritised over IPPs.104 APPEAL told us that:

IPP sentenced prisoners are generally required to complete offending behaviour programmes in order to demonstrate a reduction in risk to the Parole Board. However, recent statistics show that the number of accredited programmes offered in prisons has drastically reduced in the last decade, from 17,099 in 2011/12 to 7,968 in 2015/16. We have heard from an IPP sentenced client that prisoners with a set release date were often prioritised over her for places on these courses, leaving her with little opportunity to show her reduced risk to the Parole Board.105

67. We heard that there can be long delays to be moved or accepted on to a behaviour programme and there are not enough programmes and rehabilitative treatment in each region, which thus prevents prisoners from progressing.106 INQUEST highlighted the problems with not being able to access courses in a timely manner:

IPP prisoners sometimes struggle to gain a place on rehabilitation courses which are a requirement by the Parole Board for release, which prolongs their stay in prison. This, coupled with irregular Parole Board hearings, exacerbates their sense of hopelessness and despair which has an adverse impact on their mental health.107

68. A number of the submissions we received directly from IPP sentenced prisoners expressed frustration with the difficulties they faced in accessing courses.108 One individual, who had been recalled to prison twice and served almost 12 years beyond their tariff, wrote “right before a parole board they wanted me to do the CALM (controlling and learning to manage anger) [they knew] it had a waiting list of almost 24 months. It’s a horrible thing to happen because all of a sudden you’ve just been given another 2 years in prison”.109 Elizabeth, a victim of crime whose offender received an IPP sentence, wrote that, while she supported the IPP sentence in principle but not for short sentences, she felt that “not enough resources were given to implement the IPP successfully”, including courses to address offending behaviour.110

69. The MoJ in evidence to us stated that at the end of August [2021] there were 158 IPP offenders waiting to commence an accredited general, violence, domestic violence, or sexual offending programme. The Department told us: “It is normal to have a small number of individuals awaiting course commencement, following completion of the assessment of their suitability for it”.111

70. Some people suggested to us in their evidence that prisoners were not being held in appropriate prisons, which limited their access to accredited programmes. Dame Anne Owers, National Chair, Independent Monitoring Boards, noted that “IPP prisoners should be held in an establishment that is able to provide the necessary courses and programmes for them to progress and eventually apply for parole. Local prisons are wholly unsuitable for those prisoners serving IPP sentences due to the limited access to such courses; however, they continue to be held there in some cases”.112 UNGRIPP made a similar point that one of the most prominent ways prisons have hindered sentence progression was “the failure to locate people in a prison where they could access the interventions that they were expected to complete in order to reduce their risk. This was due either to frequent prison transfers, or to being stranded in a Category A prison whilst not being a Category A prisoner”.113 For example, we received evidence from one individual who expressed concern that their son is currently serving his IPP sentence in a Category A prison despite being a Category D prisoner:

There is no progression in the form of courses, training or education in [prison E] and it is looking as if his parole hearing will be heard whilst he is still there. My son is depressed, very anxious about his future parole hearing and at a loss to understand why he is in a Category A prison despite being a Category D prisoner. As are we.114

71. We are concerned to hear that the availability of appropriate courses for IPP prisoners is limited. The MoJ and HMPPS must ensure that there are enough places on courses available to all those who need them. As part of the IPP action plan, the MoJ and HMPPS should set out what work is being done to expand provision of courses for IPP prisoners, reduce waiting lists, and ensure that IPP prisoners are being held in appropriate category prisons.

Offender Personality Disorder Pathway

72. The Offender Personality Disorder Pathway programme was jointly commissioned in 2011 by the then Department for Health and National Offender Management Service (now HMPPS).115 The aim of the programme is “to provide a pathway of psychologically informed services for a highly complex and challenging offender group who are likely to have a severe personality disorder and who pose a high risk of harm to others, or a high risk of reoffending in a harmful way”.116 The MoJ told us that a high proportion of the IPP cohort have a range of needs including ‘personality difficulties’ and state that 96% of those serving IPPs, including recalled IPP prisoners, are screened onto the Pathway due to the level of risk and personality traits or difficulties that mean they may need additional consideration from a sentence planning perspective.117 In its written submission, the MoJ told us:

Many IPP prisoners likely to meet the criteria for a diagnosis of a ‘personality disorder’ are able to access interventions that can help them with their specific needs. A connected set of services called the Offender Personality Disorder Pathway (OPDP) joins together knowledge and ways of working from prisons and probation, and the NHS, and is jointly delivered by health as well as prison and probation staff. OPDP Services include treatment services and also progression services called Psychologically Informed Planned Environments (PIPEs). OPDP services will support prisoners from the early stages of their sentence through to their release. They also support people who have been released and who need some additional support adjusting to life within the community, as well as offering further interventions in the community.118

73. The Offender Personality Disorder Pathway Strategy 2015 set out the treatment interventions available to offenders:

  • OPD Treatment Interventions (prison and community based)
    • Community OPD Treatment
    • OPD Treatment services in prisons
    • Therapeutic Community Plus (TC+) for Learning Disabled Offenders in prisons
  • Accredited Offender Behaviour Programmes (OBPs)119
    • Democratic Therapeutic Communities—an accredited OBP which is particularly appropriate for offenders with personality disorder;120
    • CARE (Choices, Actions, Relationships, Emotions—an accredited OBP for women with a violent offence and complex needs including personality disorder);
    • CHROMIS—delivered as part of the OPD treatment services in HMP Frankland, HMP Low Newton and HMP New Hall; and
    • Other OBPs targeting high risk of harm offending which may be delivered alongside or consecutively to other OPD services (e.g. Sex Offender Treatment Programmes, Self Change Programme for violent offenders, and the Healthy Relationships Programme for domestically violent offenders).
  • NHS mental health treatments either in the community or in a secure hospital for those who are detainable under the Mental Health Act.121

74. The most recent list of CSAAP accredited programmes (February 2021) lists the Democratic Therapeutic Community Model (DTC) and therapeutic Communities Plus (TC+) as being provided by HMPPS/NHS Offender Personality Disorder Team.122 DTCs are available across five prisons in England: HMPs Grendon, Dovegate, Gartree, Warren Hill, and HMP Send (for women). 14 DTCs are delivered across these five sites, including three that have been enhanced to work with those with learning disabilities.123 In September 2021, Lucy Frazer KC MP, then Minister of State for Justice, stated that “There are currently no plans to increase the number of prisons that operate TCs”.124

75. The 2015 Offender Personality Disorder Pathway Strategy also notes that the offender manager and health service provider may also refer an individual to a Psychologically Informed Planned Environment (PIPE), and states that:

PIPEs are not a treatment; they are instead designed to support transition and personal development at significant stages of an offender’s pathway. An offender in a prison setting may either attend a Preparation PIPE to help them prepare for the treatment environment; reside in a PIPE environment (Provision PIPE) as they participate in treatment elsewhere, e.g. off the wing; or a Progression PIPE following the successful completion of an OPD treatment or OBP in their sentence plan. Additionally, the PIPE model has been applied in a number of community- based hostel settings known as Approved Premises PIPEs, supporting those who have been released from custody.125

76. The MoJ note that as of 31 December 2021, 4,869 people with IPP sentences had been identified as meeting the screening criteria for the Offender Personality Disorder Pathway, and state that “OPD pathway screening is an administrative activity which does not necessarily mean someone needs a specific intervention to address a personality disorder. Such a need would be identified when the prisoner’s probation officer reviews the prisoner’s sentence plan to take account of the OPD pathway screening”.126 Of those identified as meeting the screening criteria, 2,780 are currently in custody (with 1,200 of these in custody on recall).127 From 1 January 2017 to 31 December 2021, 1,892 offenders serving IPP sentences were referred to OPD services, as set out in table 3 below:

Table 3: Number of IPP sentenced individuals referred to Offender Personality Disorder services from 2017 to 2021

Year of referral

No of IPP Referrals

2017

177

2018

221

2019

358

2020

517

2021

619

Total (2017–2021(

1892

Source: https://questions-statements.parliament.uk/written-questions/detail/2022–03–21/hl7158

77. Evidence we received was critical of the Offender Personality Disorder Pathway (including Therapeutic Communities) and Psychologically Informed Planned Environments. Professor Paul Moran conducted an evaluation of the Pathway, which completed in Autumn 2020. However, that evaluation has not yet been published by the MoJ. Kit Malthouse MP, then Minister of State (Minister for Crime and Policing), told us it was the Government’s intention to publish the report “at some point in the new year [2022]”.128 Professor Graham Towl told us:

Part of the problem has been secrecy. We saw that in the sex offender treatment programme, for example. There was evidence in 2003 and 2004 about that not having an effect on reducing sex offending. Then in 2012 the finding was that it was making people a bit worse, but that was sat on for five years. With OPD, there is some similar evidence that has been sat on, which, as I understand, has been looked at, but I do not know what the results of it are because it has been sat on.129

78. Further to this, the ‘psy’ professionals noted in their written evidence that “[t]he more recent flagship interventions that have been held up as useful for people serving an IPP sentence—PIPEs and Progression Regimes—have yet to be evaluated for their impact on reoffending as far as we are aware”.130 Other concerns have been raised about the way in which offenders are screened onto the OPD pathway. As noted above, the MoJ told us that 96% of IPPs (including recalled IPPs) are screened onto the OPD pathway; however, the ‘psy’ professionals in evidence to us, state that:

The lack of contextual information accompanying this statement risks suggesting that the majority of people serving the IPP sentence in prison have a personality disorder, when that is not necessarily the case. Passing the screening stage should merely trigger a consideration of the presence of personality disorder, after a careful weighing up of different factors and considering different explanations of a person’s presenting issues. There are technical reasons why people serving an IPP sentence may be likely to screen onto the pathway. One is that simply having an IPP sentence is sufficient to pass the first screening stage.131

79. UNGRIPP also noted, regarding the screening of IPP prisoners onto the OPD pathway, that no comparator data is given for prisoners serving other sentences, and so it is unclear whether screening onto the OPD pathway is a distinguishing characteristic of people serving an IPP sentence.132 UNGRIPP go on to note problems with the fact that having an IPP sentence is sufficient to meet the screening threshold for risk: “a judgement that ignored the sentence’s fraught political history, acknowledged over-application and eventual abolition”.133

80. Programmes, pathways and other interventions are often relied upon by HMPPS and the Parole Board to help determine risk, and so it is vital that they deliver the outcomes they purport to deliver. We are concerned about the lack of transparency surrounding programme evaluations, and so cannot be confident that existing programmes deliver adequate outcomes for prisoners. Some programmes have been evaluated yet have been found ineffective; other programmes are being used and relied upon yet have not been evaluated or, where they have, the evaluation has not been published, as has been the case with Professor Paul Moran’s evaluation of the Offender Personality Disorder Pathway.

81. The Government should publish the commissioned report from Professor Paul Moran into the Offender Personality Disorder pathway by December 2022. In addition, the MoJ and HMPPS should set out what work is being done to ensure that all programmes delivered and relied upon by HMPPS and the Parole Board deliver adequate outcomes for prisoners; and, where they do not, they should set out the process for reviewing delivery of those programmes.

4 Parole, release on licence and community-based barriers to progression

82. The Parole Board carries out risk assessments on prisoners to determine whether they can be safely released into the community.134 The parole process usually takes six months, but can take longer, with the first stage consisting of one Parole Board member reviewing a prisoner’s dossier.135 Based on that information they will either decide that the case requires an oral hearing or give a negative decision.136 Parole Board panels take into account all evidence available to them when making a decision about an offender, including the work an offender has done to address their offending behaviour (e.g. via offender behaviour programmes), behaviour in prison, the plan to manage and mitigate risk in the community, the relationship with their Offender Manager, and other relevant evidence.

Problems with the parole system

83. Evidence to our inquiry raised a number of concerns with the operation of the parole system in respect of IPP prisoners, including delays to hearings, problems with the quality of information provided to the Board, the role of probation services, the impact that negative decisions can have on prisoners, and the inherent difficulties in assessing risk in respect of IPP prisoners. These issues are explored in the following sections.

Delays

84. A number of witnesses noted that the parole process was subject to frequent delays. One prisoner who submitted evidence to our inquiry wrote that delays with the Parole Board were “the biggest contributor of why [they] went two years over tariff”. They attributed this delay to cancelled hearings, incorrect folders being brought and there not being enough time to get through all of the witnesses during hearings.137 Shirley Debono, campaigner, UNGRIPP, told us that:

Parole hearings [are] cancelled last minute or adjourned for months on end because, for example, documents are not provided or certain members of the panel can’t make it. This exacerbates any anxiety or depression and other mental health issues that the IPP prisoner may suffer with. Contributing in many cases to worse self-harm and even suicide […]138

Similarly, the charity, Women in Prison, noted that delays, last-minute deferrals and adjournments in Parole Board dates can lead to feelings of frustration and despair, and affect an individual’s motivation and their perception of fairness.139

85. Sometimes, delays are not necessarily the fault of the Parole Board itself; for example, the Prison Reform Trust noted that “a lack of timeliness in the delivery of assessments and reports to the Parole Board by HMPPS, and the variable quality of resettlement provision regionally (for instance a lack of approved premises in some areas) have contributed to delays in the release of IPP prisoners”.140 UNGRIPP wrote that incomplete or inaccurate paperwork was often the source of months-long delays to parole hearings.141 Dame Anne Owers, National Chair, Independent Monitoring Boards, cited the case of Mr C who “was not given a sentence plan until after his initial tariff of 22 months had expired and his first parole hearing was three and a half years after he entered prison”.142 Caroline Corby, Chair, Parole Board, agreed that “there are still too many delays in the system”.143

Quality of information provided to the Parole Board

86. Some witnesses questioned the quality of information provided to the Parole Board, particularly where it is given by professionals who have had very little involvement with the individual up for parole. Donna Mooney, campaigner, UNGRIPP, told us that in her brother Tommy Nicol’s case, he had reports written for parole hearings by an outside probation officer “who had only spoken to him once on the phone for 20 minutes. This report would include a judgement on whether he would progress or not and it was decided he would not progress”.144 Donna Mooney noted the following concerns about the parole process:

  • Reports being written for parole hearings by professionals who have spent very little time (if any) with the person serving an IPP.
  • Inexperienced staff/psychologists offering evidence/opinions that can potentially delay or stop progression with there being no way for the person serving the IPP to challenge those opinions/evidence.
  • In some cases, inaccurate OASIS reports or outdated information.145

We received evidence from one prisoner who has had 11 probation officers in thirteen years. He described the Probation Service as “inconsistent” and wrote that there were “changes in staff regularly and they have to make a judgement on you without ever meeting you or a very short meeting and then follow someone else’s views to write a report”.146

The role of probation

87. Some witnesses raised concerns about the role of probation, and the support offered to those preparing for parole hearings. Doughty Street Chambers stated that resource was an issue: “Prison and Community Probation officers (Offender Managers and Offender Supervisors) are required to assess the prisoner and provide a resettlement plan. Due to pressures of work these are very often undertaken last minute and do not bear up to the scrutiny of the Parole Board”.147 The Association of Prison Lawyers noted that problems with the progression of IPP prisoners are “exacerbated by delays in the parole board process and frequency in change of key personnel be it Community Offender Manager and/or Prison Offender Managers”.148 Eddie Doherty, Probation Officer, noted that:

Currently IPP prisoners sit with POM’s [Prison Offender Managers] until the Parole process at which point a COM [Community Offender Manager] becomes involved. This is a fragmented process that does not encourage continuity or the building of trust. This is why a dedicated multi-agency team would be beneficial as the prisoner would know that a set of individuals with a clear remit are supporting their progress consistently.149

88. The Independent Monitoring Boards stated that some IMBs had raised concerns that there was limited pre- and post-release support for IPP prisoners; for example, HMP Wealstun reported that not all prisoners had access to a community probation officer, and “in some cases, the community probation officer had little knowledge of and prior contact with the prisoner”.150 Furthermore, the IMB added that “in recent years, the community probation officer has only become involved in the last six to seven months of the custodial sentence, which is not enough time to develop a positive working relationship”.151

Negative parole decisions

89. Others have noted concerns about the length of time between parole hearings where an individual has received a negative decision in their previous hearing. Ordinarily, a case will be reviewed again within two years if an individual gets a negative decision.152 Women in Prison stated that negative decisions can have a profound impact on an individual’s mental health.153 INQUEST highlighted a case which concerned the self-inflicted death of an IPP prisoner where the coroner cited the “infrequent nature of Parole Board hearings and the lack of support for complex mental health issues” as contributing factors.154 The Howard League told us “the Parole Board should prioritise people on IPPs, allocating specialist staff and members to oversee cases at least annually instead of up to every two years”.155

Assessing risk

90. Another issue cited by witnesses was the Parole Board’s approach to risk. Assessing risk is a fundamental part of the IPP sentence due to its public protection function, and the legal test for release being that “the Parole Board is empowered to direct release if it is satisfied that it is no longer necessary for the protection of the public that (the prisoner) be confined”.156 In their written submission, the ‘psy’ professionals noted that the public protection function of the IPP sentence relies on being able to understand and predict risk; however, the extent to which it is possible to accurately and correctly predict risk is debatable. They told us:

[…] risk assessment and prediction is not the exact science that it is sometimes depicted as. We cannot, with certainty, correctly determine that someone will reoffend. What we can do is suggest, with tools that demonstrate around 70% predictive accuracy, whether a person shares characteristics with a large number of other people who went on to reoffend.157

91. They go on to note that serious limitations exist with risk assessment tools as they generally predict reconviction rather than offending, and that the vast amount of offending goes undetected, meaning that “we understand a great deal more about what predicts reconviction rather than genuine reoffending. Risk assessment tools may therefore be prone to the same biases that influence convictions in the criminal justice system”. Furthermore, risk assessment tools likely predict who will get caught, as they often include items that may be associated with poorer detection evasion, such as mental health problems and impulsivity.

92. Napo noted that there is an inconsistent approach taken by Parole Board Panels to risk, and recommend:

more effective training of Parole Board members (possibly better recruitment as well) and mandatory time spent shadowing Probation/Prison staff who appear as witnesses at Parole Board Panels to increase their understanding; joint training on risk; more discussions between Parole Board and front-line Probation staff, not just management.158

Doughty Street Chambers add to this, and note that the assessment of risk is one of the problems with the parole process:

The Parole Board takes into account all of the prisoner’s behaviour whilst in prison. Any disciplinary or behavioural problems, even those that can be described as low-level, seem to result in release being refused […] Mental health difficulties, either pre-occurring or occurring as a result of lengthy incarceration, also affect a prisoner’s ability to move through the system and show a reduction in risk. Continued detention under the uncertainty of IPP sentences is often counter-productive and creates a cycle of progress and disruption.159

93. Our inquiry has highlighted wider resource issues within the Probation Service and the Parole Board. We have heard about frequent delays, untrained Parole Board members, frequent changes in professionals essential to the parole process, uncertainty following a negative parole decision and issues with the probation service. For the reasons set out, we consider the parole process as it stands, and the probation service’s involvement in it, to be ineffective, and posing a significant barrier to progression for IPP offenders. There needs to be sufficient resources for the Parole Board to consider IPP cases without undue delays. The Parole Board should prioritise people serving IPPs, and provide additional training to its members in understanding the impacts of the sentence. Only trained and experienced Parole Board members should oversee IPP cases.

94. It is unacceptable that some prisoners do not have access to a community probation officer. HMPPS should set out why this is the case, and what work is being done to ensure that all IPP prisoners have access to a community probation officer to support them to progress through their sentence. We are also concerned that in some cases, the probation officer may have little knowledge of, or prior contact with, the offender. There needs to be sufficient resource for community-based offender managers to provide IPP prisoners with the support needed to prepare for parole hearings. HMPPS should set out what it is doing to ensure that probation officers have an adequate level of contact with the offender prior to their parole hearing.

Licence Conditions

95. If the Parole Board directs the release of a prisoner, that individual will be subject to licence conditions, which are a set of rules they must follow whilst completing the remainder of their sentence in the community. The aim of this period on licence is “to protect the public, to prevent re-offending, and to secure the successful reintegration of the individual back into the community”.160 Licence conditions are proposed by the Community Offender Manager, but will be agreed by the Parole Board. In some cases, the final decision will be for the Secretary of State to make. The Parole Board told us:

[…] As part of the decision-making process, Parole Board panels will analyse the effectiveness of the proposed risk management plan and consider recommended licence conditions. The general rule for licence conditions over and above the standard conditions is that the restriction which the condition imposes, must be no greater than is necessary to manage the relevant risk. Conditions should be preventative, not punitive. These are the principles of necessity and proportionality and are critical to ensuring the licence is not unwieldy or overly restrictive, and that the individual is not released into a situation where recall is very likely.161

96. Evidence to our inquiry highlighted some of the challenges around setting appropriate licence conditions. The Prison Reform Trust found, based on interviews it conducted with 31 individuals who had experience of being in prison post-tariff, that:

Almost half noted their licence conditions were impractical, or unnecessarily restrictive. Some said their conditions increased their risk of reoffending. Many described inadequate support from, and a lack of trust in, probation officers. A profound fear of recall meant some participants felt unable to be open with probation about their problems. It also led many to social isolation and undermined their wellbeing.162

Several witnesses expressed similar concerns about licence conditions.163 One family member of an IPP sentenced individual told us that the licence conditions imposed were “unreasonable and intrusive” and that the sentence gave no peace for the prisoner or their loved ones.164

97. We also heard concerns about the extent to which prisoners and their families are supported to understand and comply with licence conditions. One prisoner, who had been recalled to prison four times, wrote that “More effort goes into catching you than helping you out”.165 Dr Harry Annison, Associate Professor, Southampton Law School, reported that “insufficient guidance and clarity about the nature and content of licence conditions was a common concern” among family members of IPP prisoners.166 Napo noted that due to the length of licence, many released prisoners will have a change in probation officer at some point whilst in the community, which can add inconsistency to their supervision.167 Peter Dawson, Director, Prison Reform Trust stated that: “We think that [the probation service] find themselves in impossible situations because they are not resourced for the complexity of the challenge they face”.168

Licence termination

98. Individuals on IPP sentences released by the Parole Board can have their licence terminated after 10 years from the date of first release, regardless of whether they were recalled in the period in between.169 Sonia Flynn, Executive Director, Chief Probation Officer and Women, HMPPS told us:

From September 2020, we started proactively to encourage those who have reached the 10-year point to make that application and we support them in the process. We must remember that significant numbers only became eligible for that 10-year rule from 2020 because we needed that lapse of time. In 2020, for example, 96 became eligible; in 2021, there are 308; and in 2022 there will be 477. That process has commenced, so we expect to see more terminations coming through the system.170

99. Section 138 of the Police, Crime Sentencing and Courts Act 2022 changed the way in which IPP sentenced offenders can have their licence terminated.171 The new provisions require the Secretary of State to refer all eligible IPP offenders to the Parole Board automatically at the 10-year point to consider terminating their licence. If the Board is not satisfied that the licence is no longer necessary for protection of the public, it is required to review that decision every 12 months thereafter. The Government has also amended the Parole Board Rules 2019 to make Parole Board decisions on licence terminations eligible for the reconsideration mechanism.172

100. During our inquiry we heard considerable evidence calling for the qualifying 10-year licence period to be reduced to five years.173 Several witnesses suggest that a 10-year period before individuals can apply to revoke their licence is disproportionate in most cases. Dr Jonathan Bild told us:

We should remember that the 10-year licence period was set as part of the original legislation, when it was envisaged that these people were all going to be really serious offenders. Now that we acknowledge that they are not all really serious offenders, there is a real disproportionate aspect of a minimum of 10 years on licence post release.174

101. The Parole Board told us that “remaining on licence indefinitely has been evidenced in research as a particular challenge for both prisoners and their families” and noted that there has been previous discussion about whether termination of the licence, in some cases, could be considered at the five year point (as is the case for consideration of suspension).175 Martin Jones, CEO, Parole Board told us:

It is 10 years before you can apply to have your licence period brought to a close. What would be the problem in potentially allowing somebody to make application earlier than that? There are many, many IPPs who have turned their lives around and are living successful family lives, and have held down a job in the community. If they have made good progress, why not allow them to bring their licence period to an end after five years? I can see considerable merit in doing that.176

102. The Centre for Crime and Justice Studies noted that “[e]arlier opportunities to bring the licence to an end would reduce the likelihood of recall”.177 The Prison Reform Trust have expressed their support for reforming the process for review and termination of the IPP licences. They wrote that, whilst reducing the qualifying period from 10 to five years would likely have only a modest effect on the numbers of IPPs being recalled, it would nevertheless increase the opportunity for people on IPPs who have successfully resettled in the community to have their licence terminated at an earlier point in their sentence.178 The Trust noted that evidence suggests that reducing the qualifying period to five years would present “minimal risk in terms of recall, and no risk in terms of serious further offences”.179

103. Kit Malthouse, then Minister for Crime and Policing, told us that reducing the length of time on licence was not something that was being considered.180 However, during the passage of the Police, Crime, Sentencing and Courts Bill the Government committed to return to the issue once we had reported our findings.181

104. Spending an indefinite period of time on licence in the community is detrimental to the mental health and rehabilitation of IPP offenders, and in many cases is not proportionate to the index offence. We welcome the introduction of automatic referral by the Secretary of State for licence termination at the 10-year point. We would welcome regular updates on the number of IPP offenders whose licence is terminated as a result of this mechanism.

105. Furthermore, we support a reduction of the qualifying licence period from 10 years to five years. This change would go some way to restoring proportionality to the IPP sentence. The MoJ should initiate legislation to this effect as soon as possible.

Recall

106. As noted above, once an IPP offender has secured their release, they become subject to an indefinite period on licence in the community. During this licence period, IPPs can be recalled at any point for a range of reasons. The decision to recall an IPP offender is made by the Probation Service, and the reasons given for recall vary. Between 2010 and 2021, of the 7,852 recall incidents: 39% were for non-compliance with licence conditions, 24% were facing further charges, 14% were failure to reside, 9% for drugs/alcohol, 6% for failure to keep in touch, 4% were for poor behaviours, 0.4% for failed home visits, and 4% for other reasons.182

107. Evidence we received from some victims of crime expressed the view that being recalled to prison indicated that an offender had yet to be successfully rehabilitated.183 Regardless of the reason for recall, once an individual has been recalled to custody, they become subject to the same parole process as before in order to secure their release. However, this may take a number of months or years. The recall to custody of IPPs has been cited by many as a significant issue and barrier to progression.

108. The IPP recall population in prison on 30 June 2022 was 1,434. The total number of IPP offenders shown to have been recalled between 1 January 2010 and 30 September 2021 was 2,794. Some of these individuals may have been recalled on multiple occasions.184 Table 4 shows the number of times IPP offenders have been recalled. The table shows that the majority (59%) of recalled IPP offenders have been recalled only once, and 84% have been recalled no more than twice. The majority of recall incidents happen within the first two years after release (71%). There is a very small number of recall incidents for those who have been in the community for longer periods of time—only 6% of recall incidents happen amongst those who are five years after release.185

109. For the period between 1 January 2015 and 30 September 2021, the average number of months spent in prison following a recall and prior to re-release was 18 months.186 The MoJ note that 1,871 IPP offenders recalled between 1 January 2010 and 30 September 2021 have had a release decision by 30 September 2021 following their first recall.187

Table 4: Number of recalls per IPP offender between 1 January 2010 and 30 September 2021

Number of times recalled

Number of offenders

1

1,651

2

684

3

299

4

125

5

26

6 or more

9

Total

2,794

Source: Ministry of Justice (IPP0179)

110. Evidence to our inquiry emphasised that the recall of IPP offenders was a growing problem, with the recalled population expected to soon overtake the unreleased IPP population. The MoJ has estimated the number of prisoners serving an IPP sentence that will be released and recalled in the coming years. Table 5 shows that significantly more prisoners are expected to be recalled than released.

Table 5: Estimated number of prisoners serving an IPP sentence who will be released and recalled in each year in the prison projections forecast period.

Projection year

Total estimated prisoners released after IPP sentence

Total estimated prisoners recalled after IPP sentence

July-21 to June 22

200

500

July 22 to June 23

200

700

July 23 to June 24

200

700

July 24 to June 25

100

700

July 25 to March 26

100

500

All figures rounded to the nearest 100

Source: Written questions and answers - Written questions, answers and statements - UK Parliament

111. Martin Jones, CEO of the Parole Board, told us that the number of recalls was a concern, stating that: “On recalls more generally, I am worried about the number of people on the continued merry-go-round of being released and recalled back into custody”.188 He went on to state that: “I am absolutely certain that, unless some action is taken, within two to three years we will have more IPP recalls back into custody than there are serving the original sentence who have never been released […] Is that really necessary if those people have not committed a further serious offence? I do not think that would be right”.189

112. Evidence suggests that one of the consequences of the IPP sentence and attached indefinite licence conditions is that many of those who are released remain fearful of being recalled at any point, which can “leave them in a never-ending cycle of anxiety, unable to socialise with others out of fear of breaching their probation rules [licence conditions]. This fear is even felt before they are released, and some now fear life outside of prison more than life within”.190 An individual on an IPP sentence told us that “[c]onstant fear of recall will lead almost anyone to depression”.191 UNGRIPP state that:

People who had experience of being on licence on the community (or of their loved one being on licence) were unanimous in their description of the high levels of fear, uncertainty and hopelessness that characterise this period of the sentence. Fear centred on two factors: the fear of being recalled indefinitely to prison, and the fear of a souring relationship with Probation Officers, in case that led to recall. These two fears considerably interfered with daily life and functioning, in ways beyond those intended.192

Family members and partners of IPP sentenced offenders also fear recall. One individual, whose partner was recalled following eight years in the community, wrote “Overnight [name] just vanished, how was I going to pay for the house, keep the cars on the road, pay the bills and look after three children”.193

113. For those who were facing further charges, it is not clear what the outcome was; for example, in some cases, the further charge may have been dropped. In its 2020 report, No life, no freedom, no future, the Prison Reform Trust noted that of the IPP offenders they interviewed, fifteen were returned to prison for a further offence, and of those, seven were convicted, two stated that their charges had been dropped and the remaining six were outstanding.194 The Trust also found that the interviewees who were convicted of a further offence agreed that it was fair that they had been recalled; however, although viewing their recall as legitimate, they questioned the length of time that they had to spend in prison before re-release.195 It found that those who were not convicted resented being recalled indefinitely for unproven charges.196 Napo have set out some concerns about the recall of IPP offenders, stating that:

The issue with those recalled following allegedly committing further offences is the lack of support available in custody, combined with the breakdown of established community supports with the return to custody. There are massively unrealistic expectations on Probation staff to address these issues; in addition if people are charged with new offences, and plead Not Guilty, they’re then at the mercy of lengthy delays in the Court system that impacts on their ability to have their case dealt with by the Parole Board (who’ll defer hearing the review of recall/re-release until the Court case is heard).197

114. For those convicted of a further offence who receive a custodial sentence, they remain in prison after serving their new sentence until the Parole Board determine they are safe for release, as assessed under the terms of their original IPP sentence.198 UNGRIPP note that people in contact with their organisation have “described lengthy periods on recall following further charges, which were generally dropped, but sometimes attracted determinate prison sentences shorter than the recall period. One person described being recalled on the basis of their physical description, but was subsequently found not to be the sought-after person. They still had to sit a Parole Board to secure re-release”.199

115. Whilst some people are recalled following a further charge, most people who are recalled to prison on an IPP licence have not committed any further offences. There has been a considerable amount of evidence, including from the Parole Board, about lack of availability of approved premises and suitable accommodation being a central reason for recall as many released IPP offenders will be required to live in an Approved Premises (AP) for the first three months of their licence.200 UNGRIPP told us that accommodation was frequently reported as an issue that led to recall: “People described being recalled for losing their space at an approved premises”.201 Martin Jones, CEO, Parole Board told us that:

Sometimes you need to use a bit of imagination in looking at the risk management plan. Sometimes you can question whether they actually need to go to approved premises. If you have the right supportive family background, releasing a prisoner to a home address, perhaps with a tag, might be a better approach than putting somebody in approved premises. It is about calibrating to the individual needs of the case. We think that is particularly helpful, for example, for recall offenders, who have perhaps spent a year to 18 months in the community and have been brought back into prison, perhaps because of a breach of their licence conditions. Do you really need them to go back on that round of spending 16 weeks in an approved premises? Just get them back into their home but manage them proportionately to their risk.202

116. As well as issues around accommodation, there are concerns about the threshold for recall. The organisation, Progressing Prisoners Maintaining Innocence, state that “[r]easons for recall seem to start at the simple omission of missing an appointment, or being slightly late. This could occur through over-sleeping, poor public transport service, residing in an unfamiliar area, and is bound to cause unnecessary recalls by creating an unnecessarily low bar”.203 APPEAL agreed, stating:

[…] common reasons for recall include minor noncompliance with licence conditions and lack of support for mental health issues on release. As an IPP sentenced prisoner’s licence remains in place for a minimum of ten years after release, there is long opportunity for recall, increasing the incarcerated population. The ‘yo-yo’ effect of being released and recalled is not only damaging to prisoners’ mental health and efforts to regain some level stability in life but is also an ineffective way of managing the release of a group of particularly vulnerable prisoners.204

117. Breaches of licence conditions lead to an average of 20 months in prison, which is the equivalent of three and a half years on a traditional fixed-term sentence.205 Lord Blunkett called the situation regarding recalls “not just unequal and unjust, it is immoral”, and went on to state that “[i]t is immoral because those individuals, who have already had their confidence and likelihood of being able to demonstrate their safety undermined, are further undermined by the conditions they found themselves in when they came out of prison”.206

118. In its evidence to us, the MoJ state that the recall of an offender back to custody “is a last resort and, therefore, as part of the recall request process, all Probation Officers must outline fully within the formal request to recall what other risk management steps they have taken to secure compliance and manage risk”.207 It further states that “IPP offenders, as with lifers, may only be recalled if their behaviour has a causal link to their index offence (or they are out of touch with probation where the link can be presumed)”.208 However, evidence we received suggested that recall is not always used as a last resort and that, in some cases, recall is a disproportionate response. Martin Jones, CEO, Parole Board told us:

It would be inappropriate in my view to recall [someone] for something that is beyond their control. If you say they have to go to a particular support service or drug service but it is not available in the community, that would be deeply unfair.209

[…]

Recently, I saw a case in which somebody had been doing successfully in the community for nine years and was recalled to custody at nine and a half years. You start to question that. If you look at the reasons behind that, it does not really go to the heart of public protection. In reality, if they commit a further offence of course they would be charged with that, and obviously go through due process, but recalling them to custody does not seem to me to be proportionate in many cases if they have spent quite a long time doing well in the community.210

119. The MoJ cites a HMIP Thematic Inspectorate report (2020), arguing that it states that the probation service is using recall appropriately. However, the same inspectorate report highlights concerns around inconsistent licence warning practice and inconsistent access to and use of alternatives to recall, such as use of approved premises and electronic monitoring.211 In oral evidence, Caroline Corby, Chair of the Parole Board, suggested that further consideration of recalls would be beneficial:

We are very keen that recalls be looked at. We think it will be extremely helpful to look at the threshold for recalls and whether it was always set in the right place, whether Executive release is used sufficiently following a recall and the role of the Parole Board. There is a very broad piece of work that could be done very helpfully in that area.212

120. The recalled population of IPP offenders is a growing concern and will soon be larger than the population of IPP prisoners who have never been released from custody. The Government needs to devote far greater energy and resource to tackling the “recall merry-go-round”, ensuring that IPP prisoners who do secure their release are able to live a successful life thereafter, avoiding unnecessary recall to prison. We agree with the Chair of the Parole Board that the Government should examine this issue in depth, covering, for example, the threshold for recalls, the use of Executive release, and the role of the Parole Board. The Government should discuss with local government how to ensure an adequate supply of approved premises that does not over burden specific local authorities. Emergency recalls should only be used as a last resort. Probation staff should be encouraged and supported to use alternative measures to emergency recall, such as adjusted reporting requirements, curfews and use of electronic tags.

121. The Parole Board should have a greater role in decision-making around recalls. All IPP prisoners who have been recalled, not having received a new custodial sentence for committing a further offence, should have the right to an oral parole board hearing within two months of their request. The probation service should have to attend to explain their recall decision. Furthermore, all recalled IPP prisoners should be entitled to annual reviews by the Parole Board to consider whether they are fit for re-release.

Resettlement

122. Some of the evidence we received suggested that IPP sentenced prisoners face particular challenges with regards to preparation for release and resettlement. Irish Community Care considered resettlement as being “particularly fraught” for IPP prisoners because they are “way over tariff, traumatised and very disconnected from society”.213 Peter Dawson, Director of the Prison Reform Trust, told us that the usual resettlement issues around accommodation, employment, mental health and family support are “much more difficult to meet for most people who have served [an IPP sentence]”.214 This echoes evidence we received from the Independent Advisory Panel on Deaths in Custody, which stated that “[t]he support that is typically in place for prisoners on release is not sufficient for IPP prisoners because of the additional risk factors and challenges they face”.215

123. Not having a release date is seen as a hindrance to effective preparation for release. A number of submissions we received from serving prisoners and their relatives considered that not having a release date made it more difficult to access services and to make arrangements for accommodation and employment.216 Frontline Women in Prison workers have reported that “the absence of a fixed release date results in a lack of urgency or time pressure on the Parole Board and Probation to arrange a resettlement plan. This can lead to a significant period of time in custody for women even where community referrals have been made”.217 A volunteer mentor on a pre-release programme wrote that “[b]ecause of the unknown release date for those with IPP sentences, we rarely get the opportunity to work with them to prepare for their release. Sometimes they are released very quickly, and they do not have the opportunity to think through, with a mentor, what they would like their life to be like once they leave, and do the practical, mental and emotional work with a volunteer mentor that preparation involves”.218

124. Several submissions we received also raised concerns about the adequacy of support for IPP sentenced individuals following release into the community.219 Dame Anne Owers, National Chair of the Independent Monitoring Boards, cited concerns that, at Buckley Hall, there was an insufficient number of probation prison offender managers to properly manage complex prisoners, including IPP sentenced prisoners. Two prisoners the Board spoke to, who had each been released and subsequently recalled to prison, “blamed a system which, they said, did not support them sufficiently to reintegrate into society”.220 In oral evidence, we heard that resettlement support for IPP prisoners “has to be very individualised”, which is “enormously resource intensive”.221 Dr Harris at the Prison Reform Trust told us that the effort to support people in the community must match the efforts being put into helping people achieve release.222

125. Witnesses proposed a number of ways in which IPP prisoners’ preparation for release might be improved. Several submissions we received suggested that greater use of Release on Temporary Licence (ROTL) could help IPP prisoners to feel better prepared for release and enable them to build links with employers and education providers in the community.223 Francesca Cooney suggested that prisons could do more to support IPP prisoners with maintaining family connections. She also considered it important that prisoners receive the right practical support, such as opportunities to develop digital skills, assistance with setting up bank accounts, accessing National Insurance numbers and identification, and accessing benefits. Ms Cooney suggested that data be collated and published on the number of IPP prisoners released to permanent and temporary accommodation, and with or without a training, education or work placement, and that probation and associated resettlement services be measured on these outcomes.224

126. We also received suggestions as to how IPP sentenced individuals might be better supported in the community. Irish Community Care wrote that, for one individual, the “most valuable” support they received was via a single point of contact which enabled “joined up communication with services, especially accessing GPs/health services online; and personal introductions to supportive & therapeutic services and peer groups”.225 Professor Towl told us that there are “some very practical changes that we could make very straightforwardly, not with additional resources but simply using existing resources differently, which could be very impactful indeed”.226 He argued that some psychologists working in the high-security estate might be more usefully deployed in community settings, where they could both run interventions with prison leavers and support probation officers with making recall decisions.227

127. In its Prisons Strategy White Paper, the Government set out proposals to enhance resettlement provision, including the introduction of Resettlement Passports.228 Resettlement Passports aim to bring together key information and services a prison leaver often needs on release. They will be “a personalised document covering mental health, drugs, education, skills, work, accommodation and family ties”.229 In its response to the consultation, the Government noted suggestions from stakeholders that the passports “should be digital, link to sentence planning and be flexible to meet individual needs”.230 The Government is also committed to ensuring that “prison leavers leave with the basics, such as ID and a bank account, through a programme of activity in prisons in the coming year”.231

128. As set out earlier in this Report, the recall of IPP sentenced individuals is a growing problem. IPP prisoners face particular challenges with resettlement, and careful consideration must therefore be given as to how they are prepared for their release and subsequently supported in the community. We agree with the Prison Reform Trust that efforts to successfully reintegrate IPP prison leavers into society must match those efforts being made to help them to achieve release.

129. We welcome the Government’s commitment to ensuring that all prison leavers leave prison with the basics, such as ID and a bank account, and ask that updates on this programme of work be provided to us. We would also welcome progress updates on the introduction of Resettlement Passports. As the passports are developed, we recommend that the MoJ works with stakeholders to give particular consideration as to how they can be used to meet the needs of IPP prisoners, including how resources such as psychologists can be most usefully deployed. In its response to this Report, the MoJ should also set out how IPP prisoners are prepared for their release, including the use of ROTL and the resettlement support and services that are available to prisoners who do not have a release date.

5 Resentencing

130. Part of the terms of reference for this inquiry referred to possible legislative solutions to address the IPP problem. We have concluded that the only way to adequately and comprehensively address the IPP problem is to enact primary legislation so that a resentencing exercise can be carried out in respect of prisoners still serving or on licence for an IPP sentence. In this chapter we set out the reasons why a legislative solution to the IPP problem is necessary, the reasons why we consider resentencing to be the only adequate option to address that problem effectively, and finally, principles that we believe must be applied when enacting the relevant legislation and carrying out the resentencing exercise.

The need for a legislative solution

131. Giving the 2016 judgment for the Court of Appeal in the case of R v Roberts, Lord Thomas of Cymgiedd, then Lord Chief Justice of England and Wales, set out what he called “the issue for Parliament”.232 Where the IPP sentence had been “properly and lawfully passed” (as in the 13 cases before the court on that occasion) in line with the clear terms of the Criminal Justice Act 2003, it would not be permissible for the appeal court to set the sentence aside. The judgment acknowledged the “substantial criticism that many years after the expiry of minimum terms, sometimes of a very short period, many sentenced to IPP remain in custody or have been recalled to custody for breach of their licence conditions,” and noted criticism of the imbalance between the threshold test for applying the sentence and the threshold test for release.233 Lord Thomas identified three ways to resolve these problems:

It would appear that there is no likely solution other than (1) significant resources be provided to enable those detained to meet the current test for release which the Parole Board must apply or (2) for Parliament to use the power contained in s.128 of LASPO 2012 to alter the test for release which the Parole Board must apply or (3) for those in custody to be re-sentenced on defined principles specially enacted by Parliament.234

132. We have, in the preceding chapters, made recommendations as to the operational solutions we believe are necessary to facilitate the release and avoid the unnecessary recall of existing IPP prisoners. But it has been acknowledged that operational change by itself will not solve the IPP problem. In 2018, Martin Jones, Chief Executive of the Parole Board, forewarned that “without further legislative change the legacy of IPP prisoners will remain for many years to come, not least because the number of IPP prisoners recalled to custody continues to rise”.235

133. As we have set out in earlier chapters of this Report, a serious problem remains for those serving IPP sentences:

  • The existing operational solutions are not working sufficiently to solve the problem. For example, we have heard about the psychological harm the sentences have caused IPP prisoners and of problems regarding the availability and accessibility—and even the appropriateness—of Offender Behaviour Programmes, mental health provision and other support deemed necessary by the Parole Board to demonstrate a reduction in risk. Furthermore, we consider the MoJ’s IPP Action Plan to be weak and lacking in strategic priority.
  • In many cases this amounts to a serious injustice that will worsen if not properly dealt with. There are now a considerable number of IPP prisoners who have never been released, are significantly over tariff and have some of the most complex needs that are not being adequately addressed in prison. Furthermore, the recall population is expected to outgrow the unreleased population. The Sentencing Academy described the sentence as “an intractable problem that is only being made more difficult by the passage of time”.236
  • When the IPP sentence was abolished by repealing provisions of the CJA 2003, the repeal was expressly made “to have no effect in relation to a person convicted before 3rd December 2012”.237 As a consequence, those provisions continue to have effect in relation to existing IPP prisoners, whether in custody or on licence, and they can only be amended or comprehensively repealed by primary legislation.

The case for resentencing

134. Many witnesses in evidence to us made the case for a comprehensive conversion or resentencing exercise. Notably, the former Lord Chief Justice, Lord Thomas, called resentencing the only “inevitable” outcome, stating that “it is the only fair and just thing to do”.238 The Sentencing Academy stated that “a resentencing exercise would finally remedy the issue with IPP sentence prisoners and it is the only way to ensure that no one spends the rest of their life in prison despite having not been convicted of an offence of the gravity that would merit a sentence of life imprisonment”.239

135. Others agreed and supported a resentencing exercise. Donna Mooney told us that resentencing would “restore a sense of just and proportionate punishment. This is also the only real way to full[y] address an issue that has not been solved in over 10 years”.240 APPEAL stated that the only just and effective way to address the IPP problem was the retrospective abolition of the sentence and noted that “this would involve legislating for a unique judicial process whereby individuals can apply to be re-sentenced. This approach […] would be the fairest way to rectify the injustice and inequalities experienced by those living with a sentence now outlawed”.241 APPEAL recommended that “Parliament legislate for the retrospective abolition of the IPP sentence and the re-sentencing of all remaining IPP sentenced individuals, both in and out of prison”.242

136. Doughty Street Chambers summarised why it is necessary to revisit IPP sentences:

One option would be to re-visit all existing sentences, a power to be enacted by Parliament. It has been repeatedly acknowledged that in both its main iterations the “dangerous offender” regime allowed for the IPP sentences to be imposed for low-level offending, and it has also been well-documented that in many cases, the sentence actually served far exceeded the minimum tariff and, in some cases the maximum tariff for that offence, either because rehabilitative courses could not be accessed or due to factors pertaining to the offender. The IPP regime has been, it is submitted, comprehensively discredited. How then can it be principled to allow the sentence to continue to apply?243

It further states that:

Any such re-visiting would have to be enacted by statute. It may be that there should be a specific body to revisit the sentence imposed, either one especially convened for the task or the CACD [Court of Appeal, Criminal Division] itself. Each case would require a fresh assessment: The Court/body could leave the IPPs in force in any case where they thought the person continued to pose a risk to the public, in violent or sexual cases. As against that, there would be quite a number who would no longer satisfy that test (if they ever had) and therefore be entitled to freedom from the order.244

137. The Parole Board, although not explicitly of one opinion on resentencing, have set out that:

As a creature of statute, the Parole Board must deal with the cases put before it. The Board believes it would be very difficult to retrospectively amend sentences imposed by a judge without further judicial consideration. If sentenced today some of those serving an IPP sentence may well have received a life sentence. The Board does however have concerns about IPPs whose time in custody is massively disproportionate to the seriousness of their offence and would support steps to ameliorate that position, providing that the public is sufficiently protected.245

138. The Centre for Crime and Justice Studies noted that whilst there are other options for addressing the IPP problem, these do not go far enough, and stated that “the unjust and oppressive failings of the system for review of detention have been so extensive that a resentencing process is the least that can be reasonably expected”.246

139. Witnesses have made varying suggestions on how a resentencing exercise could be conducted. The Sentencing Academy told us that “all offenders subject to an IPP sentence would have their case referred to the High Court where the judge would re-consider the facts of the case, and apply the appropriate sentencing options from the range that Parliament has set out for sentencing judges to use today”.247

140. UNGRIPP propose a conversion exercise to a sentence modelled on the Extended Determinate Sentence:

Such an exercise might be achieved administratively in many cases, using a person’s tariff as a basis to set a custodial term proportionate to the offence (e.g. 2 x tariff length, as tariffs were originally set at half the equivalent determinate sentence) followed by a defined licence period. A minority of cases may need more careful judicial consideration, particularly the small number who may more justly require a life sentence.248

Indefinite detention

141. IPP sentences could only be imposed where a life sentence was inappropriate, either because the index offence did not carry a life sentence or because the court did not consider that a life sentence was justified. However, IPP sentences have been described as “life sentence[s] by the back door” by family members of those serving the sentence. Indefinite detention via life sentences is widely recognised as an appropriate punishment for a number of serious offences in our criminal justice system. There are currently 8,576 indeterminate sentenced prisoners, including 1,492 on IPP sentences and 7,084 serving a life sentence (all variations).249 This figure includes those persons serving mandatory life sentences, for example for murder, and those serving discretionary life sentences for crimes, such as rape or robbery, where the maximum sentence is life imprisonment.

142. Like IPP sentences, when a life sentence is passed a judge must specify the tariff an offender must spend in prison before becoming eligible to apply for parole. The sentence is a life sentence, as opposed to an IPP sentence, as the offender will be subject to that sentence for the rest of their life, whether serving time in custody or the community. Whereas an IPP sentenced offender may have their licence terminated 10 years after their initial release date, no such opportunity exists for life sentenced prisoners even if they are released and never recalled to prison.

143. IPP sentences therefore operate in the same fashion as life sentences in that there is no guarantee that the individual will ever be released. Since the sentences were abolished, they have been effectively replaced with extended determinate prison sentences. Extended sentences are imposed in certain cases where the court has found that the offender is dangerous, and an extended licence period is required to protect the public from risk; the judge determines a custodial term and fixes the extended licence period up to a maximum of eight years. The key distinction is that extended sentences are determinate, meaning that the individual will be automatically released, subject to licence conditions, at the end of their custodial term.

144. Due to the indeterminacy of the sentence, IPP sentences are more akin to life sentences than to the extended determinate sentences that have effectively replaced them. The co-existence of extended determinate sentences alongside IPP sentences is seen by many as unfair and has heightened the sense of injustice felt by prisoners still serving the latter. It has also led to perverse situations where offenders who have committed more serious crimes have been sentenced, served their custodial term and been released back into the community in the same space of time as those who may have committed lesser crimes and received an IPP sentence, yet remain imprisoned. As Dr Jonathan Bild pointed out to us, there are a number of IPP prisoners for which the maximum sentence for their crime would not incur a life sentence today: “Where they are not suitable for life imprisonment, we are on very shaky ground potentially detaining that person for the rest of their life”.250

Precedent for resentencing

145. Although rare, the Government can, and does, legislate to change the way sentences operate. The Sentencing Academy and APPEAL both highlighted a precedent for resentencing created under Schedule 22 of the Criminal Justice Act 2003 following the case of Anderson v Secretary of State [2003] 1 AC 837, in which the House of Lords held that the power of the Secretary of State, conferred by section 29 of the CJA 2003, to set the tariff for a mandatory life sentence prisoner was not compatible with the right to a fair hearing by an impartial tribunal:251

There is a precedent for a large-scale re-sentencing exercise conducted in the High Court. Schedule 22 to the Criminal Justice Act 2003 set out a process by which any prisoner serving a mandatory life sentence for murder could apply to the High Court to have a minimum term set to replace any tariff previously set by the Home Secretary. This largely unnoticed and uncontroversial process took place over many years for the purpose of a judge setting a minimum term that would have been the correct duration at the time of the original sentencing—in essence, a backdated sentencing exercise.252

146. More, generally, we note that while successive governments have declined to amend IPP sentences with retrospective effect, Parliament nevertheless has the power to do so. When speaking in a Westminster Hall debate, Robert Buckland KC MP, then Minister of State for Justice, said: “It could be done—there is no immutable bar to passing legislation that would have a retrospective effect, but there is a sensitivity in cutting across the original sentence and the finding of the court”.253

Concerns and considerations

147. Whilst many have expressed their support for a resentencing exercise of some kind, others have noted some concerns about such an exercise. We received several submissions from victims of crime who voiced concerns for their safety and the safety of others should their offender be resentenced and subsequently released.254 One individual wrote that “[i]t would have a high impact on my life if [my offender’s] sentence was to change again or he was to be re-released. I feel like I would end up in my dark place once again but I wouldn’t be able to come out of it. I don’t want him in [location] or any town that even surrounds the areas me and my family live in”.255 Another wrote that “I am alerted every couple of years when [my offender] becomes eligible for parole, and I send victim statements every time. I feel duty bound to protect his next victim, and I know that next time he will kill”.256 Some also questioned whether there was adequate resource to manage offenders’ risk in the community.257

148. Napo raised concerns about the number of people who, if resentenced, would be immediately eligible for release given the amount of time they are over tariff already. It also noted concern about a lack of resource in the community, stating that “[t]he current demand for Approved Premises (AP’s) bed spaces is already under pressure which would impact on our ability to put together credible Risk Management Plans, similarly staff workload will significantly increase”.258 In a similar vein, the Sentencing Academy, whilst expressing support for resentencing, noted concerns about there being a mixed cohort of prisoners, who would require a degree of support in the community, and the potential high rates of recall. It stated that:

Some of these [IPP offenders] may now present a higher risk than when they entered custody as they will have spent a very long time in prison and this may have fractured any existing supportive ties in the community. Therefore, a re-sentencing process must be accompanied by greater support for these prisoners upon release to take into account the level of work required to reintegrate them into society.259

149. The Prison Reform Trust noted that, whilst resentencing is its preferred solution to the IPP problem, it would have significant resource implications and could place a strain on the judiciary and criminal justice agencies. It stated that:

Therefore, it might be necessary to prioritise consideration of cases, perhaps starting with those in prison who had received original tariffs of less than two years. Releases for those who have served their ‘deserved’ number of years would need to be carefully planned, to avoid overwhelming the Probation Service. There would need to be a phased programme of releases, with properly resourced preparation, and post release support for all those affected.260

150. 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 on their own to deal with the problems that have been identified in the way the IPP sentence continues to operate and is likely to operate in the coming years. The sentence is irredeemably flawed.

151. As Lord Thomas noted in R v Roberts: “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.

152. Our primary recommendation is that the Government brings forward legislation to enable a resentencing exercise in relation to all IPP sentenced individuals (except for those who have successfully had their licence terminated). This is the only way to address the unique injustice caused by the IPP sentence and its subsequent administration, and to restore proportionality to the original sentences that were given.

153. Concerns about available community resource for released offenders are valid and need to be taken into consideration. However, the lack of such resource is not a suitable reason for keeping people imprisoned indefinitely. We reiterate the words of our predecessor Committee:

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.261

154. We have not sought to set out the terms of the proposed legislation to enable the resentencing exercise, which will ultimately be for Parliament to consider. We do, however, recommend that it should comply with the key principles that we set out below. We also appreciate that establishing a resentencing exercise will be administratively complex. Accordingly, we recommend that the Government set up a time-limited small expert committee to advise on the practical implementation of the resentencing exercise in conjunction with the senior judiciary.

Key principles that should be upheld

155. Lord Thomas noted that finding a ready solution to the IPP problem would not be easy.262 Indeed, the difficulties in so doing have led to years of paralysis by successive governments. Any attempt to deal comprehensively with the problem by means of a resentencing exercise will have to address several risks head-on: the risks of danger to the public, of interfering with the independence of the judiciary, and of putting IPP offenders at further disadvantage by virtue of the resentencing. To mitigate these, we believe the Government and Parliament must be guided by three key principles, which we deal with in turn in the following sections:

  • Balancing the protection of the public with justice for the individual offender;
  • recognising and protecting the independence of the judiciary; and
  • ensuring that no harsher sentence is imposed retrospectively.

Balancing public protection with justice for the individual offender

156. As noted in Chapter 2, the reason for creating the IPP sentence was to ensure that the public was protected from offenders considered to be dangerous. A resentencing exercise would likely result in the immediate release of a large number of prisoners who had not, under current rules, successfully persuaded the Parole Board that their imprisonment was no longer necessary to protect the public. As a result, there is the possibility that some prisoners released as a result of this exercise might reoffend.

157. The dilemma facing Parliament and Ministers was set out by Nick Hardwick, former Chair of the Parole Board:

In recent years between about 0.5% and 1% of those the Parole Board releases commit a serious further offence. Looked at as a percentage I would argue that this demonstrates good quality decision making. However, these percentages obscure that between around 20 to 40 times a year there will be a victim of a serious offence committed by someone released by the Parole Board.263

158. It is worth noting that the risk that a prisoner will reoffend if they are released is not new or unique to IPP prisoners. The Government accepts it on a daily basis when determinate-sentenced prisoners are released from custody on licence. Peter Dawson told us:

[…] the Prison Service every day of every week releases people who represent a risk to the public who have served a determinate sentence, and systems exist to try to manage that risk. They are not perfect, but they are hugely more sophisticated than they were a decade ago. As a society, we live with that risk.264

159. Many of these determinate sentenced prisoners will have committed more serious crimes than, or crimes of at least equal seriousness to, those who are still in prison serving IPP sentences. In fact, the MoJ states that the majority of SFO [Serious Further Offences] convictions involve offenders who were being supervised on a community sentence or a determinate custodial sentence (their index sentence); less than 10% of all SFO convictions involve an offender whose index sentence was a life sentence (life) or an IPP.265 Furthermore, the overall reoffending rates are lower for IPP offenders (9.2% for the period April 2019 to March 2020) than for determinate sentence prisoners (in the same period, 59.1% for those with a custodial sentence of less than 12 months and 24.1% for those with a custodial sentence of more than 12 months).266

160. As we have seen, the IPP sentence was originally intended for serious violent and sexual offenders whose index offence did not warrant a life sentence. However, because of the presumption of dangerousness and the lack of judicial discretion, the sentence was applied far more widely than originally anticipated. And as evidence to this inquiry has made clear, for many offenders, the conditions for release have been impossible to meet. Consequently, there are 231 IPP prisoners who received sentences with tariffs of less than two years and 606 prisoners who received sentences with tariffs of 2 to 4 years who have never been released. In other words, a large number of the IPP prisoner population are serving what amounts to a life sentence for what are widely regarded as lower-level offences such as robbery, theft offences, criminal damage, arson and public order offences.

161. Evidence to our inquiry has also highlighted serious concerns about the impact of indefinite detention on some individual offenders. As a result of the uncertainty, and feelings of injustice, they have so declined in their mental health, and for some, behavioural presentations, that they are unable to meet the Parole Board’s test for release. Often, this deterioration is a result of the offender’s circumstances rather than the index offence. Further to this, and as already discussed, provision in prison and the community is not adequately addressing the needs of IPPs. As a result, some offenders are failing to meet the release test and further deteriorating, while others, having successfully been released on licence in the community, are subject to the constant fear of being recalled and serving another indefinite period in custody until they can again prove they are fit to be released.

162. It is important to note, however, that there are offenders serving IPP sentences where the risk relating to their index offence remains of such serious concern that some may feel an IPP sentence would continue to be appropriate. There are, for example, about 59 unreleased prisoners who received tariffs of more than 10 years, 42 of which have not yet completed their minimum tariff. The Parole Board told us that “there are some highly dangerous IPPs in prison” and stated that “the Board acts to ensure they remain in custody for as long as it considers risk cannot be safely managed in the community. This goes to the heart of protecting the public”.267

163. In a private roundtable held with prison and probation staff we were told of cases where the IPP sentence was considered to be entirely appropriate. For example, we were told of the case of one sex offender who had done everything that was required of him with regard to his progression plan, but still held the belief that his views and actions were morally acceptable. The probation officer told us that it would be impossible to manage that individual’s risk in the community because “he didn’t have any internal barriers”.268 Another probation officer told us of a case where the individual was a model prisoner, but as soon as they were out in the community they were a significant risk. Probation officers in our roundtable concluded that there were certainly cases where it was correct that the individual should be serving an IPP sentence.

164. We have also been careful to fully consider the perspectives of victims. We received a number of submissions from victims of offenders serving IPP sentences for serious crimes. As one submission sets out:

For us, the implication of backdating the IPP legislation, should it involve the release of prisoners who have served their original tariff, is the release of a dangerous and violent man who is still committing the offence for which he has been imprisoned. […]

His release will be our life sentence. The offender has ignored every restriction placed on him by the police and justice system. Given our considerable experience at the hands of this offender, we have no faith that any rehabilitation programme, licence or restraining order will have any effect on this man. […]

We will resume the life we led before his imprisonment, when each trip outside to empty a bin, walk from locked house to locked garden workshop or from house to car is a calculated risk that could result in an assault. […]269

165. It is important to recognise, therefore, that this cohort of offenders presents a particular challenge in relation to public protection, and to be mindful of the entirely reasonable concerns of victims, who must not be forgotten when any action is taken to address the IPP problem. The IPP sentence is unusual in that it detains individuals in prison on the basis of what they might do, rather than on the basis of what they have done. As noted by our predecessor Committee, the punitive element of the sentence is the tariff, which was determined by the judge “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”.270 The remainder of the time the offender spends in penal custody is preventive. The Committee concluded that preventive detention is a draconian measure and noted that other measures exist—and are used today—to manage the risk that an individual might reoffend, and that the criminal justice system “cannot eradicate the risk of serious offending or re-offending by dangerous individuals”.271

166. Nevertheless, in seeking to balance the protection of the public against justice for the individual offender, it is important to note that it should not be assumed a resentencing exercise would automatically result in the swift release of all IPP prisoners. There are likely to be a number of prisoners who would remain in custody serving extended determinate sentences, whether because of the seriousness of their original offence, or because of their ongoing risk to public protection.

Recognising and protecting the independence of the judiciary

167. Judicial independence has been used as an argument against conducting a resentencing exercise. The Government elected not to abolish IPP sentences retrospectively in 2012 partly on the basis that it would be “inappropriate” to revisit a sentence that had been lawfully imposed.272 Sir Robert Buckland KC MP later asserted, while Minister of State for Prisons, that it would be “difficult for a fresh sentencer to put themselves entirely in the position of the sentencing judge at the time of the offence”.273

168. While it may be the case that the resentencing judge would not face an easy task, it does not necessarily follow that undertaking the exercise would be inherently improper. In his evidence to us, Lord Thomas said that “there is no question that doing something of this kind is any interference with the judicial independence of sentencing. That is sometimes an argument made. I regret to say that I think it is totally misconceived”.274

169. But as noted in Chapter 2, the origins of the IPP problem lie partly in the fact that the original legislation constrained judicial discretion in respect of the sentence’s application. Obtaining strategic judicial input at an early stage would help to ensure that the design and implementation of any resentencing exercise, and the drafting of any legislation to enable it, respected judicial experience and discretion, minimised the chance of unfairness or successful challenge, and avoided replicating the shortfalls of the original IPP regime.

Ensuring that no harsher sentence is imposed retrospectively

170. While successive governments have adopted the principle that retrospective legislation should be avoided unless it is necessary, as we have already noted, there is no inherent bar to legislating with retrospective effect. And in our view, the inherent injustice of the IPP sentence provides strong justification for doing so.

171. It is vital, however, that a resentencing exercise be done in such a way that avoids the fundamental injustice of imposing a harsher sentence retrospectively than was applicable when the offence was committed. As Dr Harry Annison confirmed in his evidence to this inquiry, there is no barrier to taking retrospective action if it places those who have been disproportionately disadvantaged by the sentence in a more advantageous position than that which they currently occupy.275 But natural justice, common law principles and Article 7 of the European Convention on Human Rights276 prohibit the retrospective application of criminal law to a person’s detriment, including by redefining or modifying the scope of a penalty already imposed.277

172. Evidence to our inquiry has also been clear that the current unreleased IPP population is not a homogenous group. Any resentencing exercise will require a carefully targeted approach. The original sentence was imposed for a wide range of offences. There is subsequently a considerable range of offenders, each with different rehabilitative needs and associated risks. As Dr Dinesh Maganty explained:

[…] At one end of the spectrum, we have quite high-risk individuals who have committed very serious offences. At the other end of the spectrum, we have individuals who have committed considerably less severe offences, even minor ones in some instances. […]278

173. Accordingly, particular care will need to be taken, especially when considering the more serious offences, to avoid putting the offender at a greater disadvantage as a result of the resentencing exercise than they had faced under the original indefinite sentence. For example, the sentencing judge will already have concluded, when applying the law in place at the time of the offence and having taken all relevant matters into consideration, that a life sentence was not appropriate at the time. This means that a life sentence cannot be an option in the resentencing exercise.

174. In addition, any new sentence would need to take into account the possibility of release from which all IPP offenders benefit theoretically, even if it is difficult to secure in practice. It would be to an individual’s detriment if an indeterminate sentence that could be ended at any time (provided the release test was satisfied) were replaced with a determinate sentence with no similar option of early release.

175. In establishing how to undertake a resentencing exercise of IPP prisoners and what legislation would be needed, it will be important to keep in mind the following three key principles:

a) Balancing protection of the public with justice for the individual offender: A resentencing exercise must strike a balance between protecting the public from the risk of IPP prisoners committing serious further offences if released and securing justice for individual offenders. To achieve that balance, it must be accompanied by sufficient resources to provide released IPP offenders with the support they need—including mental health support—to reintegrate into society. It must also avoid a one-size-fits-all approach and should prioritise the offenders most adversely affected by the sentence: those who were sentenced in the early years of the sentence, prior to the ‘seriousness threshold’ changes in 2008. Any resentencing exercise should also ensure that current sentencing practices designed to ensure protection of the public from serious violent and sexual offenders, such as the way Extended Determinate Sentences are applied and supported, serve as a model in relation to resentenced IPP offenders.

b) The independence of the judiciary: We agree with Lord Thomas that undertaking a resentencing exercise would not interfere with the judicial independence of sentencing. Indeed, it was the decision to curtail the usual discretion of judges to determine the most appropriate sentence for each offender that led to the initial proliferation of the IPP sentence. It would be important, therefore, for a resentencing exercise not to repeat that mistake. In resentencing IPP prisoners the judiciary must be able to make an independent and fair assessment of the individual circumstances of each case and have the discretion to determine an appropriate sentence.

c) Measures to prevent retrospectively increasing the sentence: Any resentencing exercise must be constrained by the general principle, derived from common law and natural justice and set out in the European Convention on Human Rights, that a person should not be subjected to a heavier penalty than that which applied when they committed the offence. A resentencing exercise must avoid imposing any new sentence that puts an offender at a disadvantage compared to their existing IPP sentence, including, where necessary, maintaining the opportunity for release from which IPP offenders currently benefit.

176. 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.

Conclusions and recommendations

Prison-based barriers to progression

1. Given the extensive and complex nature of the challenges faced by IPP sentenced individuals, we find the absence of detail in the IPP Action Plan surprising. It lacks a clear strategic priority and ownership, as well as operational detail, timeframes, and performance measures. (Paragraph 38)

2. We recommend the MoJ and HMPPS develop a new action plan, which should include clear performance measures for each of its workstreams. The new action plan should also, against each workstream, include an accountable owner for the workstream, and a timeframe for completion of each workstream activity so that there can be greater accountability and scrutiny. A new version of the IPP Action Plan should be published by the end of Q1 2023, with a report on the operation of the plan and any revisions to it published annually thereafter. (Paragraph 39)

3. The psychological harm caused by IPP sentences is a considerable barrier to progression for some IPP prisoners. The indefinite nature of the sentence has contributed to feelings of hopelessness and despair that has resulted in high levels of self-harm and some suicides within the IPP population. In addition to this, IPP prisoners distrust the people and services that are necessary to support their progression. In identifying solutions to the IPP problem, the MoJ, HMPPS and Parole Board must acknowledge the psychological harm caused by the IPP sentence, and the challenges this presents regarding progression. The MoJ and HMPPS should also set out how they intend to improve access to mental health support for IPP prisoners, including transfers to secure hospitals and therapeutic settings. (Paragraph 58)

4. Additionally, there are a small number of mentally unwell prisoners who are subsequently transferred to a secure mental hospital. For these prisoners, the process for post-tariff release is more complex, and we are not clear what support is offered to those who, after a period of treatment, are no longer deemed detainable under the Mental Health Act 1983, but do not go on to meet the Parole Board’s test for release, and are then transferred back to prison from the secure hospital. The MoJ, HMPPS and the Parole Board should set out what support is available to those prisoners who are remitted back to prison after a period of time spent under section in a secure hospital, and how they are supported to progress in their sentence. (Paragraph 59)

5. We are concerned to hear that the availability of appropriate courses for IPP prisoners is limited. The MoJ and HMPPS must ensure that there are enough places on courses available to all those who need them. As part of the IPP action plan, the MoJ and HMPPS should set out what work is being done to expand provision of courses for IPP prisoners, reduce waiting lists, and ensure that IPP prisoners are being held in appropriate category prisons. (Paragraph 71)

6. Programmes, pathways and other interventions are often relied upon by HMPPS and the Parole Board to help determine risk, and so it is vital that they deliver the outcomes they purport to deliver. We are concerned about the lack of transparency surrounding programme evaluations, and so cannot be confident that existing programmes deliver adequate outcomes for prisoners. Some programmes have been evaluated yet have been found ineffective; other programmes are being used and relied upon yet have not been evaluated or, where they have, the evaluation has not been published, as has been the case with Professor Paul Moran’s evaluation of the Offender Personality Disorder Pathway. (Paragraph 80)

7. The Government should publish the commissioned report from Professor Paul Moran into the Offender Personality Disorder pathway by December 2022. In addition, the MoJ and HMPPS should set out what work is being done to ensure that all programmes delivered and relied upon by HMPPS and the Parole Board deliver adequate outcomes for prisoners; and, where they do not, they should set out the process for reviewing delivery of those programmes. (Paragraph 81)

Parole, release on licence and community-based barriers to progression

8. Our inquiry has highlighted wider resource issues within the Probation Service and the Parole Board. We have heard about frequent delays, untrained Parole Board members, frequent changes in professionals essential to the parole process, uncertainty following a negative parole decision and issues with the probation service. For the reasons set out, we consider the parole process as it stands, and the probation service’s involvement in it, to be ineffective, and posing a significant barrier to progression for IPP offenders. There needs to be sufficient resources for the Parole Board to consider IPP cases without undue delays. The Parole Board should prioritise people serving IPPs, and provide additional training to its members in understanding the impacts of the sentence. Only trained and experienced Parole Board members should oversee IPP cases. (Paragraph 93)

9. It is unacceptable that some prisoners do not have access to a community probation officer. HMPPS should set out why this is the case, and what work is being done to ensure that all IPP prisoners have access to a community probation officer to support them to progress through their sentence. We are also concerned that in some cases, the probation officer may have little knowledge of, or prior contact with, the offender. There needs to be sufficient resource for community-based offender managers to provide IPP prisoners with the support needed to prepare for parole hearings. HMPPS should set out what it is doing to ensure that probation officers have an adequate level of contact with the offender prior to their parole hearing. (Paragraph 94)

10. Spending an indefinite period of time on licence in the community is detrimental to the mental health and rehabilitation of IPP offenders, and in many cases is not proportionate to the index offence. We welcome the introduction of automatic referral by the Secretary of State for licence termination at the 10-year point. We would welcome regular updates on the number of IPP offenders whose licence is terminated as a result of this mechanism. (Paragraph 104)

11. Furthermore, we support a reduction of the qualifying licence period from 10 years to five years. This change would go some way to restoring proportionality to the IPP sentence. The MoJ should initiate legislation to this effect as soon as possible. (Paragraph 105)

12. The recalled population of IPP offenders is a growing concern and will soon be larger than the population of IPP prisoners who have never been released from custody. The Government needs to devote far greater energy and resource to tackling the “recall merry-go-round”, ensuring that IPP prisoners who do secure their release are able to live a successful life thereafter, avoiding unnecessary recall to prison. We agree with the Chair of the Parole Board that the Government should examine this issue in depth, covering, for example, the threshold for recalls, the use of Executive release, and the role of the Parole Board. The Government should discuss with local government how to ensure an adequate supply of approved premises that does not over burden specific local authorities. Emergency recalls should only be used as a last resort. Probation staff should be encouraged and supported to use alternative measures to emergency recall, such as adjusted reporting requirements, curfews and use of electronic tags. (Paragraph 120)

13. The Parole Board should have a greater role in decision-making around recalls. All IPP prisoners who have been recalled, not having received a new custodial sentence for committing a further offence, should have the right to an oral parole board hearing within two months of their request. The probation service should have to attend to explain their recall decision. Furthermore, all recalled IPP prisoners should be entitled to annual reviews by the Parole Board to consider whether they are fit for re-release. (Paragraph 121)

14. As set out earlier in this Report, the recall of IPP sentenced individuals is a growing problem. IPP prisoners face particular challenges with resettlement, and careful consideration must therefore be given as to how they are prepared for their release and subsequently supported in the community. We agree with the Prison Reform Trust that efforts to successfully reintegrate IPP prison leavers into society must match those efforts being made to help them to achieve release. (Paragraph 128)

15. We welcome the Government’s commitment to ensuring that all prison leavers leave prison with the basics, such as ID and a bank account, and ask that updates on this programme of work be provided to us. We would also welcome progress updates on the introduction of Resettlement Passports. As the passports are developed, we recommend that the MoJ works with stakeholders to give particular consideration as to how they can be used to meet the needs of IPP prisoners, including how resources such as psychologists can be most usefully deployed. In its response to this Report, the MoJ should also set out how IPP prisoners are prepared for their release, including the use of ROTL and the resettlement support and services that are available to prisoners who do not have a release date. (Paragraph 129)

Resentencing

16. 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 on their own to deal with the problems that have been identified in the way the IPP sentence continues to operate and is likely to operate in the coming years. The sentence is irredeemably flawed. (Paragraph 150)

17. As Lord Thomas noted in R v Roberts: “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. Paragraph 151)

18. Our primary recommendation is that the Government brings forward legislation to enable a resentencing exercise in relation to all IPP sentenced individuals (except for those who have successfully had their licence terminated). This is the only way to address the unique injustice caused by the IPP sentence and its subsequent administration, and to restore proportionality to the original sentences that were given. (Paragraph 152)

19. Concerns about available community resource for released offenders are valid and need to be taken into consideration. However, the lack of such resource is not a suitable reason for keeping people imprisoned indefinitely. We reiterate the words of our predecessor Committee:

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. (Paragraph 153)

20. We have not sought to set out the terms of the proposed legislation to enable the resentencing exercise, which will ultimately be for Parliament to consider. We do, however, recommend that it should comply with the key principles that we set out below. We also appreciate that establishing a resentencing exercise will be administratively complex. Accordingly, we recommend that the Government set up a time-limited small expert committee to advise on the practical implementation of the resentencing exercise in conjunction with the senior judiciary. (Paragraph 154)

21. In establishing how to undertake a resentencing exercise of IPP prisoners and what legislation would be needed, it will be important to keep in mind the following three key principles: (Paragraph 175)

a) Balancing protection of the public with justice for the individual offender: A resentencing exercise must strike a balance between protecting the public from the risk of IPP prisoners committing serious further offences if released and securing justice for individual offenders. To achieve that balance, it must be accompanied by sufficient resources to provide released IPP offenders with the support they need—including mental health support—to reintegrate into society. It must also avoid a one-size-fits-all approach and should prioritise the offenders most adversely affected by the sentence: those who were sentenced in the early years of the sentence, prior to the ‘seriousness threshold’ changes in 2008. Any resentencing exercise should also ensure that current sentencing practices designed to ensure protection of the public from serious violent and sexual offenders, such as the way Extended Determinate Sentences are applied and supported, serve as a model in relation to resentenced IPP offenders.

b) The independence of the judiciary: We agree with Lord Thomas that undertaking a resentencing exercise would not interfere with the judicial independence of sentencing. Indeed, it was the decision to curtail the usual discretion of judges to determine the most appropriate sentence for each offender that led to the initial proliferation of the IPP sentence. It would be important, therefore, for a resentencing exercise not to repeat that mistake. In resentencing IPP prisoners the judiciary must be able to make an independent and fair assessment of the individual circumstances of each case and have the discretion to determine an appropriate sentence.

c) Measures to prevent retrospectively increasing the sentence: Any resentencing exercise must be constrained by the general principle, derived from common law and natural justice and set out in the European Convention on Human Rights, that a person should not be subjected to a heavier penalty than that which applied when they committed the offence. A resentencing exercise must avoid imposing any new sentence that puts an offender at a disadvantage compared to their existing IPP sentence, including, where necessary, maintaining the opportunity for release from which IPP offenders currently benefit.

22. 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. (Paragraph 176)

Formal minutes

Thursday 22 September 2022

Members present:

Sir Robert Neill, in the Chair

James Daly

Maria Eagle

Laura Farris

Paul Maynard

Dr Kieran Mullan

The following declarations of interest to the inquiry were made.279

IPP sentences

Draft Report (IPP sentences), proposed by the Chair, brought up and read.

Ordered, That the Chair’s draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 176 read and agreed to.

Summary agreed to.

Motion made and Question put, That the Report be the Third Report of the Committee to the House.

The Committee divided.

Ayes, 4

Noes, 1

James Daly

Dr Kieran Mullan

Maria Eagle

Laura Farris

Paul Maynard

Question accordingly agreed to.

Resolved, That the Report be the Third Report of the Committee to the House.

Ordered, That the Chair make the Report to the House.

Ordered, That embargoed copies of the Report be made available (Standing Order No. 134).

Adjournment

Adjourned till Tuesday 11 October 2022 at 2pm

Witnesses

The following witnesses gave evidence. Transcripts can be viewed on the inquiry publications page of the Committee’s website.

Tuesday 23 November 2021

Donna Mooney, Campaigner, UNGRIPP; Miss Shirley Debono, Campaigner, UNGRIPP; Dr Dinesh Maganty, Consultant Forensic Psychiatrist, Clinical lead Tamarind Centre and Chief Mental Health Legislation Officer, Birmingham and Solihull Mental Health NHS Foundation TrustQ1–31

Peter Dawson, Director, Prison Reform Trust; Dr Mia Harris, Research Officer, Prison Reform Trust; Russell Webster, Independent Prisons ConsultantQ32–67

Tuesday 7 December 2021

The Rt Hon the Lord Blunkett, former Home Secretary (2001–2004); The Rt Hon the Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales (2013–2017)Q68–104

Professor Graham Towl, Professor of Psychology, Durham University, visiting clinical professor, Newcastle University; Dr Jonathan Bild, Deputy Director, Sentencing Academy; Professor Nick Hardwick, Professor of Criminal Justice, Department of Law and Criminology at Royal Holloway, University of LondonQ105–135

Tuesday 14 December 2021

Caroline Corby, Chair, Parole Board; Mr Martin Jones, Chief Executive Officer, Parole BoardQ136–190

Kit Malthouse MP, Minister for Crime and Policing, Ministry of Justice; Sonia Flynn, Executive Director, Chief Probation Officer & Women, HM Prison and Probation Service; Dr Jo Bailey, National Lead Psychologist, HM Prison and Probation ServiceQ191–266

Published written evidence

The following written evidence was received and can be viewed on the inquiry publications page of the Committee’s website.

IPP numbers are generated by the evidence processing system and so may not be complete.

1 Arshad, Ms Farrhat (Barrister, Doughty Street Chambers) and O’Connor QC, Mr Patrick (Barrister, Doughty Street Chambers) (IPP0100)

2 A former prisoner (anonymised) (IPP0003)

3 A serving prisoner (anonymised) (IPP0072)

4 A serving prisoner (anonymised) (IPP0070)

5 A serving prisoner (anonymised) (IPP0065)

6 A serving prisoner (anonymised) (IPP0058)

7 A serving prisoner (anonymised) (IPP0039)

8 A serving prisoner (anonymised) (IPP0029)

9 A serving prisoner (anonymised) (IPP0019)

10 A serving prisoner (anonymised) (IPP0016)

11 A serving prisoner (anonymised) (IPP0014)

12 A serving prisoner (anonymised) (IPP0008)

13 A serving prisoner (anonymised) (IPP0007)

14 A serving prisoner (anonymised) (IPP0006)

15 A serving prisoner (anonymised) (IPP0132)

16 A serving prisoner (anonymised) (IPP0133)

17 A serving prisoner (anonymised) (IPP0134)

18 A serving prisoner (anonymised) (IPP0135)

19 A serving prisoner (anonymised) (IPP0136)

20 A serving prisoner (anonymised) (IPP0137)

21 A serving prisoner (anonymised) (IPP0138)

22 A serving prisoner (anonymised) (IPP0139)

23 A serving prisoner (anonymised) (IPP0140)

24 A serving prisoner (anonymised) (IPP0141)

25 A serving prisoner (anonymised) (IPP0142)

26 A serving prisoner (anonymised) (IPP0143)

27 A serving prisoner (anonymised) (IPP0144)

28 A serving prisoner (anonymised) (IPP0145)

29 A serving prisoner (anonymised) (IPP0146)

30 A serving prisoner (anonymised) (IPP0147)

31 A serving prisoner (anonymised) (IPP0148)

32 A serving prisoner (anonymised) (IPP0149)

33 A serving prisoner (anonymised) (IPP0150)

34 A serving prisoner (anonymised) (IPP0151)

35 A serving prisoner (anonymised) (IPP0152)

36 A serving prisoner (anonymised) (IPP0153)

37 A serving prisoner (anonymised) (IPP0154)

38 A serving prisoner (anonymised) (IPP0155)

39 A serving prisoner (anonymised) (IPP0156)

40 A serving prisoner (anonymised) (IPP0157)

41 A serving prisoner (anonymised) (IPP0158)

42 A serving prisoner (anonymised) (IPP0159)

43 A serving prisoner (anonymised) (IPP0160)

44 A serving prisoner (anonymised) (IPP0161)

45 A serving prisoner (anonymised) (IPP0162)

46 A serving prisoner (anonymised) (IPP0163)

47 A serving prisoner (anonymised) (IPP0164)

48 A serving prisoner (anonymised) (IPP0165)

49 A serving prisoner (anonymised) (IPP0166)

50 A serving prisoner (anonymised) (IPP0167)

51 A serving prisoner (anonymised) (IPP0168)

52 A serving prisoner (anonymised) (IPP0169)

53 A serving prisoner (anonymised) (IPP0170)

54 A serving prisoner (anonymised) (IPP0171)

55 A serving prisoner (anonymised) (IPP0172)

56 A serving prisoner (anonymised) (IPP0173)

57 A serving prisoner (anonymised) (IPP0174)

58 A serving prisoner (anonymised) (IPP0175)

59 A serving prisoner (anonymised) (IPP0176)

60 A serving prisoner (anonymised) (IPP0177)

61 A victim of crime (anonymised) (IPP0116)

62 A victim of crime (anonymised) (IPP0061)

63 A victim of crime (anonymised) (IPP0108)

64 A victim of crime (anonymised) (IPP0110)

65 A victim of crime (anonymised) (IPP0111)

66 A victim of crime (anonymised) (IPP0113)

67 A victim of crime (anonymised) (IPP0114)

68 A victim of crime (anonymised) (IPP0115)

69 A victim of crime (anonymised) (IPP0117)

70 A victim of crime (anonymised) (IPP0119)

71 A victim of crime (anonymised) (IPP0120)

72 A victim of crime (anonymised) (IPP0121)

73 A victim of crime (anonymised) (IPP0122)

74 A victim of crime (anonymised) (IPP0131)

75 APPEAL (IPP0051)

76 Annison, Dr Harry (Associate Professor, Southampton Law School) (IPP0010)

77 Association of Prison Lawyers (IPP0105)

78 Blunkett, Rt Hon Lord David (IPP0060)

79 CIC, Victimcare (IPP0089)

80 Carruthers, Pippa (Prison Law Solicitor, Howard & Byrne) (IPP0102)

81 Cooney, Francesca (IPP0104)

82 Cotton, Ms Hilary (IPP0035)

83 David (IPP0023)

84 Debono, Miss Shirley (IPP0036)

85 Doherty, Mr Eddie (Probation Officer, Probation Service) (IPP0047)

86 Elizabeth, (IPP0041)

87 Emmersons Solicitors Limited (IPP0090)

88 Family member of an IPP prisoner (anonymised) (IPP0109)

89 Family member of an IPP prisoner (anonymised) (IPP0073)

90 Family member of an IPP prisoner (anonymised) (IPP0066)

91 Family member of an IPP prisoner (anonymised) (IPP0012)

92 Family member of an IPP prisoner (anonymised) (IPP0027)

93 Family member of an IPP prisoner (anonymised) (IPP0032)

94 Family member of an IPP prisoner (anonymised) (IPP0069)

95 Family member of an IPP prisoner (anonymised) (IPP0087)

96 Family member of an IPP prisoner (anonymised) (IPP0129)

97 Hardwick, Professor Nick (Professor of Criminal Justice, Royal Holloway University of London) (IPP0097)

98 Horton, Mrs Ann (IPP0009)

99 Howard League for Penal Reform (IPP0059)

100 INQUEST (IPP0064)

101 Independent Advisory Panel on Deaths in Custody (IPP0101)

102 Independent monitoring boards (IPP0099)

103 Irish Community Care (IPP0052)

104 Ministry of Justice (IPP0179)

105 Ministry of Justice (IPP0178)

106 Ministry of Justice (IPP0033)

107 Mooney, Donna (IPP0037)

108 Napo (IPP0085)

109 Parole Board for England & Wales (IPP0031)

110 Peplow, Dr David (Senior Lecturer, Sheffield Hallam University) (IPP0018)

111 Price, Dr David (IPP0024)

112 Prison Reform Trust (IPP0048)

113 Prison chaplain (anonymised) (IPP0022)

114 Prison staff (anonymised) (IPP0011)

115 Prison staff and serving prisoners (anonymised) (IPP0086)

116 Prisoners’ Advice Service (IPP0103)

117 Prisons and Probation Ombudsman (IPP0040)

118 Progressing Prisoners Maintaining Innocence (IPP0056)

119 Sentencing Academy (IPP0067)

120 Smith, Raymond (IPP0015)

121 Sperling, Andrew (Director of Legal, SL5 Legal) (IPP0124)

122 Stringer, Emily (IPP0074)

123 The Centre for Crime and Justice Studies; and Justice Episteme (IPP0049)

124 The Institute of Now (IPP0068)

125 Towl, Professor Graham (IPP0125)

126 UNGRIPP (IPP0118)

127 Voluntary prison chaplain (anonymised) (IPP0005)

128 Weightman MBE, John ((IPP0025)

129 Women in Prison (IPP0043)

130 profesionals, Psy (IPP0123)

List of Reports from the Committee during the current Parliament

All publications from the Committee are available on the publications page of the Committee’s website.

Session 2022–23

Number

Title

Reference

1st

Women in Prison

HC 265

1st Special

Court capacity: Government Response to the Committee’s Sixth Report of Session 2021–22

HC 548

2nd Special

Covid-19 and the criminal law: Government Response to the Committee’s Fourth Report of Session 2021–22

HC 644

3rd Special

The Future of Legal Aid: Updated Government Response to the Committee’s Third Report of Session 2021–22

HC 698

Session 2021–22

Number

Title

Reference

1st

The Coroner Service

HC 68

2nd

Rainsbrook Secure Training Centre

HC 247

3rd

The Future of Legal Aid

HC 70

4th

Covid-19 and the criminal law

HC 71

5th

Mental health in prison

HC 72

6th

Court capacity

HC 69

1st Special

The future of the Probation Service: Government Response to the Committee’s 18th Report of 2019–21

HC 475

2nd Special

Rainsbrook Secure Training Centre: Government Response to the Committee’s Second Report of 2021–22

HC 565

3rd Special

The Coroner Service: Government Response to the Committee’s First Report

HC 675

4th Special

The Future of Legal Aid: Government Response to the Committee’s Third Report

HC 843

5th Special

Mental health in prison: Government Response to the Committee’s Fifth Report

HC 1117

Session 2019–21

Number

Title

Reference

1st

Appointment of Chair of the Office for Legal Complaints

HC 224

2nd

Sentencing Council consultation on changes to magistrates’ court sentencing guidelines

HC 460

3rd

Coronavirus (COVID-19): The impact on probation services

HC 461

4th

Coronavirus (Covid-19): The impact on prisons

HC 299

5th

Ageing prison population

HC 304

6th

Coronavirus (COVID-19): The impact on courts

HC 519

7th

Coronavirus (COVID-19): the impact on the legal professions in England and Wales

HC 520

8th

Appointment of HM Chief Inspector of Prisons

HC 750

9th

Private prosecutions: safeguards

HC 497

10th

Sentencing Council consultation on sentencing guidelines for firearms offences

HC 827

11th

Sentencing Council consultation on the assault offences guideline

HC 921

12th

Children and Young People in Custody (Part 1): Entry into the youth justice system

HC 306

13th

Sentencing Council: Changes to the drugs offences definitive guideline

HC 751

14th

Appointment of the Chair of the Independent Monitoring Authority

HC 954

15th

Appointment of the Chief Inspector of the Crown Prosecution Service

HC 955

16th

Children and young people in custody

HC 922

17th

Rainsbrook Secure Training Centre

HC 1266

18th

The future of the Probation Service

HC 285

1st Special

Prison Governance: Government Response to the Committee’s First Report of Session 2019

HC 150

2nd Special

Court and Tribunal Reforms: Government Response to the Committee’s Second Report of Session 2019

HC 151

3rd Special

Transforming Rehabilitation: Followup: Government Response to the Committee’s Nineteenth Report of Session 2017–19

HC 152

4th Special

Coronavirus (COVID-19): The impact on probation systems: Government Response to the Committee’s Third Report

HC 826

5th Special

Coronavirus (Covid 19): The impact on the legal professions in England and Wales: Government Response to the Committee’s Seventh Report

HC 898

6th Special

Ageing prison population: Government Response to the Committee’s Fifth Report

HC 976

7th Special

Court and Tribunal reforms: Further Government response to the Committee’s Second Report of Session 2019 and Coronavirus (Covid-19): The impact on courts: Government response to the Committee’s Sixth Report of Session 2019–21

HC 1008

8th Special

Coronavirus (Covid-19): The impact on prisons: Government Response to the Committee’s Fourth Report of Session 2019–21

HC 1065

9th Special

Children and Young People in Custody (Part 1): Entry into the youth justice system: Government Response to Committee’s Twelfth Report of Session 2019–21

HC 1185

10th Special

Private prosecutions: safeguards: Government Response to the Committee’s Ninth Report

HC 1238

11th Special

Children and Young People in Custody (Part 2): The Youth Secure Estate and Resettlement: Government Response to the Committee’s Sixteenth Report of Session 2019–21

HC 1357

Footnotes

1 Ministry of Justice (IPP0179)

2 Ministry of Justice and HMPPS, Offender Management Statistics Quarterly: January to March 2022, Table 1.9a (Prison Population: 30 June 2022), 28 July 2022

3 A number of submitters have also requested that their submissions be accepted in confidence.

4 Home Office, Justice For All, Cm 5563, July 2002, para 5.41

5 R v Roberts & Others [2016] EWCA Crim 71, Paras 4–5

6 See for example, Sentencing Academy, Sentencing Explained: Imprisonment for Public Protection (IPP) Sentences, 2020

7 Sentencing Academy, Sentencing Explained: Imprisonment for Public Protection (IPP) Sentences, 2020

8 HM Chief Inspector of Prisons, The Indeterminate Sentence for Public Protection, September 2008

9 Lockyer review, Ministry of Justice, Service review – Indeterminate Sentence Prisoners (ISPs), (17 August 2007)

10 Lockyer review, Ministry of Justice, Service review – Indeterminate Sentence Prisoners (ISPs), (17 August 2007)

11 HC Deb, 15 June 2010, col 730 [Commons Chamber]

12 No 10 Downing Street, The PM’s press conference on sentencing reforms, 21 June 2011

13 James, Wells and Lee v United Kingdom [2012] ECHR 1706, §221

14 James, Wells and Lee v United Kingdom [2012] ECHR 1706, §220

15 James, Wells and Lee v United Kingdom [2012] ECHR 1706, §221

16 See for example Ms Farrhat Arshad (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS); Mr Patrick O’Connor QC (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS) (IPP0100)

17 HC Deb, 1 Nov 2011, col 787 [Commons Chamber]

18 HC Deb, 1 Nov 2011, col 787 [Commons Chamber]

19 Prison Reform Trust, IPP sentences, December 2012

20 By virtue of regulation 6 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 4 and Saving Provisions) Order 2012 (S.I. 2012/2906)

21 HL Deb, 9 Feb 2012, col 443 [Lords Chamber]

22 This is not the number of individuals who received an IPP sentence—a number of offenders were given more than one IPP sentence. See IPP0179 for data supplied by the Ministry of Justice.

23 The Centre for Crime and Justice Studies, Justice Episteme (IPP0049)

24 Section 128(6) Crime (Sentences) Act 1997

25 Daniel Greenberg, “Levels of Certainty”, Westlaw Key Legal Concept, para 11, last reviewed 5 April 2022

26 National Audit Office, Managing the Prison Estate, HC 735, 6 December 2013, para 21

27 Howard League, The never-ending story: Indeterminate sentencing and the prison regime, (accessed 04 May 2022)

28 Letter from Rt Hon. Michael Gove MP, Lord Chancellor and Secretary of State for Justice, to Bob Neill MP, Chair, Justice Committee, Prison Reform, 20 April 2016

29 Letter from Rt Hon. Michael Gove MP, Lord Chancellor and Secretary of State for Justice, to Bob Neill MP, Chair, Justice Committee, Prison Reform, 21 May 2016

30 BBC, Ken Clarke: Change the rules on ‘public danger’ prisoners, 30 May 2016

31 Parole Board, Statement on IPP Prisoners from Parole Board Chairman, 26 July 2016

32 Parole Board, Statement on IPP Prisoners from Parole Board Chairman, 26 July 2016

33 Letter from Nick Hardwick, Chair, Parole Board, to Rt Hon. Michael Gove MP, Lord Chancellor and Secretary of State for Justice, IPPs and Parole, 07 July 2016

34 Michael Gove, ‘What is Really Criminal about our Justice System?’, 2016 Longford Lecture, 16 November 2016, (accessed 20 September 2022)

35 HM Inspectorate of Prisons, Unintended consequences: Finding a way forward for prisoners serving sentences of imprisonment for public protection - A thematic review, November 2016, p7

36 Ministry of Justice, A Speech on criminal justice reform by the Secretary of State for Justice, 13 February 2017

37 David Lidington, A speech on Parole Board 50th Anniversary, November 2017

38 The Parole Board, Annual Report and Accounts 2018/19, 18 July 2019

39 Justice Committee, Sixteenth Report of Session 2017–19, Prison population 2022: planning for the future, HC 483, para 182

40 Justice Committee, Seventh Special Report of Session 2017–19, Prison population 2022: planning for the future: Government Response to the Committee’s Sixteenth Report of Session 2017–19, HC 2380

41 See for example, HC Deb, 11 June 2019, col 274WH [Westminster Hall]

42 HL Deb, 15 November 2021, col 31 [Lords Chamber]

43 Ministry of Justice and HMPPS, Offender Management Statistics Quarterly: January to March 2022, Tables 1.9a and 1.9b (Prison Population: 30 June 2022), 28 July 2022

44 Association of Prison Lawyers (IPP0105)

45 Napo (IPP0085)

46 See: Independent monitoring boards (IPP0099) and Q212 [Kit Malthouse]

47 Ministry of Justice (IPP0033)

48 Ministry of Justice (IPP0033)

49 Q219 [Dr Bailey]

50 Q209 [Kit Malthouse]

51 Ministry of Justice (IPP0178)

52 Ministry of Justice, Restorative Justice Action Plan for the Criminal Justice System, November 2012

53 Ministry of Justice, SME Action Plan 2018–2022, 7 January 2019

54 Q222 [Dr Bailey]

55 Francesca Cooney (IPP0104)

56 See for example IPP0007, IPP0008, IPP0014, IPP0019, IPP0029, IPP0065, IPP0072, IPP0133, IPP0134, IPP0136, IPP0141, IPP0142, IPP0143, IPP0144, IPP0145, IPP0146, IPP0147, IPP0149, IPP0150, IPP0152, IPP0153, IPP0154, IPP0155, IPP0158, IPP0159, IPP0161, IPP0162, IPP0163, IPP0164, IPP0165, IPP0166, IPP0168, and IPP0172.

57 A serving prisoner (IPP0149)

58 Q4 [Dr Dinesh]

59 Q4 [Dr Dinesh]

60 Q4 [Dr Dinesh]

61 Psy professionals (IPP0123)

62 UNGRIPP (MHP0061); see also submissions we received from serving prisoners: IPP0007, IPP0008, IPP0014, IPP0019, IPP0029, IPP0065, IPP0142, IPP0143, IPP0144, IPP0149, IPP0150, IPP0155, IPP0159, IPP0162, and IPP0165.

63 Independent Advisory Panel on Deaths in Custody (IPP0101)

64 Prison Reform Trust, Prison: the facts - Bromley Briefings Summer 2016, June 2016

65 Independent Advisory Panel on Deaths in Custody (IPP0101)

66 Prison Reform Trust, No life, no freedom, no future: The experiences of people recalled whilst serving IPP sentences, December 2020

67 Prisons and Probation Ombudsman (IPP0040)

68 Independent Advisory Panel on Deaths in Custody (IPP0101)

69 Donna Mooney (IPP0037)

70 Donna Mooney (IPP0037)

71 Inquest, Inquest concludes into death of Tommy Nicol who ‘lost hope’ on IPP sentence, November 2018

72 Q12 [Dr Maganty]

73 A serving prisoner (IPP0065)

74 Q125 [Professor Towl]

75 Dr Harry Annison (Associate Professor at Southampton Law School) (IPP0010)

76 Q23

77 Women in Prison (IPP0043)

78 INQUEST (IPP0064)

79 Ministry of Justice, Freedom of Information Act (FOIA) Request - 21022705, March 2021

80 Howard League for Penal Reform (IPP0059)

81 Howard League for Penal Reform (IPP0059)

82 A serving prisoner (IPP0019)

83 Q6

84 Q161

85 Q6

86 UNGRIPP (IPP0118)

87 APPEAL (IPP0051)

88 Q188

89 UNGRIPP (IPP0118)

90 Ministry of Justice and HMPPS, Guidance: Offending behaviour programmes and interventions, November 2018 (updated April 2021), accessed 04 May 2022

91 Ministry of Justice and HMPPS, Guidance: Offending behaviour programmes and interventions, November 2018 (updated April 2021), accessed 04 May 2022

92 Ministry of Justice and HMPPS, Guidance: Offending behaviour programmes and interventions, November 2018 (updated April 2021), accessed 04 May 2022

93 Ministry of Justice (IPP0033)

94 Q4 [Dr Maganty]

95 Psy professionals (IPP0123)

96 UNGRIPP (IPP0118)

97 Napo (IPP0085)

98 Progressing Prisoners Maintaining Innocence (IPP0056)

99 Professor Graham Towl (IPP0125)

100 Professor Graham Towl (IPP0125)

101 Professor Graham Towl (IPP0125)

102 Q225 [Dr Bailey]

103 Q73 [The Rt Hon. the Lord Thomas of Cwmgiedd]

104 See for example: APPEAL (IPP0051); Women in Prison (IPP0043)

105 APPEAL (IPP0051)

106 Progressing Prisoners Maintaining Innocence (IPP0056); Napo (IPP0085); Association of Prison Lawyers (IPP0105); UNGRIPP (IPP0118)

107 INQUEST (IPP0064)

108 See for example IPP0007, IPP0008, IPP0019, IPP0065, IPP0070, IPP0133, IPP0136, IPP0137, IPP0139, IPP0142, IPP0143, IPP0149, IPP0152, IPP0154, IPP0164 and IPP0170

109 A serving prisoner (IPP0007)

110 Elizabeth (IPP0041)

111 Ministry of Justice (IPP0033); The MoJ note that “the information provided covers both offending behaviour and sexual offending programmes. Substance misuse programmes are the responsibility of NHS commissioners and we do not hold information in relation to them.”

112 Independent monitoring boards (IPP0099)

113 UNGRIPP (IPP0118)

114 Family member of an IPP prisoner (IPP0069)

115 National Offender Management Service and NHS England, The Offender Personality Disorder Pathway Strategy 2015, (accessed 04 May 2022)

116 National Offender Management Service and NHS England, The Offender Personality Disorder Pathway Strategy 2015, (accessed 04 May 2022)

117 Ministry of Justice (IPP0033)

118 Ministry of Justice (IPP0033)

119 OBPs are delivered in prisons and by Probation Services or Community Rehabilitation Companies in the community and are not commissioned by the OPD Programme; but are very likely to feature in an offender’s OPD Pathway Plan.

120 DTCs are not commissioned by the OPD Programme but are considered to be effective at treating individuals with personality disorder.

121 National Offender Management Service and NHS England, The Offender Personality Disorder Pathway Strategy 2015, (accessed 04 May 2022)

122 Ministry of Justice, Correctional Services Accreditation and Advice Panel (CSAAP): Currently accredited programmes, February 2021

123 PQ 144919, Prisoners: Rehabilitation, 22 March 2022

124 PQ 41780, Prisoners: Rehabilitation, 3 September 2021

125 National Offender Management Service and NHS England, The Offender Personality Disorder Pathway Strategy 2015, (accessed 04 May 2022)

126 PQ HL7158, Prison Sentences, 21 March 2022

127 PQ HL7158, Prison Sentences, 21 March 2022

128 Q227 [Kit Malthouse]

129 Q125 [Professor Towl]

130 Psy professionals (IPP0123)

131 Psy professionals (IPP0123)

132 UNGRIPP (IPP0118)

133 UNGRIPP (IPP0118)

134 Parole Board for England & Wales (IPP0031)

135 The dossier is a collection of documents about the prisoner, including reports and information about their offending, progress made in custody and their risk management plan. The Parole Board, Guidance: How we make our decisions, 20 March 2019

136 The Parole Board, Guidance: How we make our decisions, 20 March 2019

137 A serving prisoner (IPP0170)

138 Miss Shirley Debono (IPP0036)

139 Women in Prison (IPP0043)

140 Prison Reform Trust (IPP0048)

141 UNGRIPP (IPP0118)

142 Independent monitoring boards (IPP0099)

143 Q145 [Caroline Corby]

144 Donna Mooney (IPP0037)

145 Donna Mooney (IPP0037)

146 A serving prisoner (IPP0065)

147 Ms Farrhat Arshad (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS); Mr Patrick O’Connor QC (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS) (IPP0100)

148 Association of Prison Lawyers (IPP0105)

149 Mr Eddie Doherty (Probation Officer at Probation Service) (IPP0047)

150 Independent monitoring boards (IPP0099)

151 Independent monitoring boards (IPP0099)

152 Ministry of Justice, Getting parole, (accessed 05 May 2022)

153 Women in Prison (IPP0043)

154 INQUEST (IPP0064)

155 Howard League for Penal Reform (IPP0059)

156 The Parole Board, The Parole Board Decision Making Framework, October 2019

157 Psy professionals (IPP0123)

158 Napo (IPP0085)

159 Ms Farrhat Arshad (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS); Mr Patrick O’Connor QC (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS) (IPP0100)

160 The Parole Board, Licence Conditions and how the Parole Board use them, 22 January 2018

161 Parole Board for England & Wales (IPP0031)

162 Prison Reform Trust (IPP0048)

163 See for example Shirley Debono (IPP0036), Progressing Prisoners Maintaining Innocence (IPP0056), Prisoners’ Advice Service (IPP0103), Francesca Cooney (IPP0104), UNGRIPP (IPP0118)

164 UNGRIPP (IPP0118)

165 A serving prisoner (IPP0152)

166 Dr Harry Annison (Associate Professor at Southampton Law School) (IPP0010)

167 Napo (IPP0085)

168 Q55 [Peter Dawson]

169 Ministry of Justice (IPP0033)

170 Q203 [Sonia Flynn]

171 Section 138 of the 2022 Act amends section 31A of the Crime (Sentences) Act 1997

172 Letter from the Lord Chancellor and Secretary of State for Justice on a Statutory Instrument to amend Parole Board Rules, 30 June 2022

173 See for example Q36 [Peter Dawson], Q83 [Lord Blunkett], Q169 [Martin Jones], A serving prisoner (IPP0070), A serving prisoner (IPP0149), Family member of an IPP prisoner (IPP0027), Family member of an IPP prisoner (IPP0069), Psy Professionals (IPP0123)

174 Q135 [Dr Jonathan Bild]

175 Parole Board for England & Wales (IPP0031)

176 Q169 [Martin Jones]

177 The Centre for Crime and Justice Studies, Justice Episteme (IPP0049)

178 Prison Reform Trust (IPP0048)

179 Prison Reform Trust (IPP0048)

180 Q204 [Kit Malthouse]

181 HL Deb, 15 December 2021, Col. 359

182 Note: recall incidents do not total sum to the total number of offenders recalled.

183 See for example IPP0113, IPP0115, IPP0119, IPP0122, IPP0131

184 Ministry of Justice (IPP0179)

185 Ministry of Justice (IPP0179)

186 Ministry of Justice (IPP0179)

187 It cannot be assumed that individuals not shown to have a release date after their initial recall are all in custody: some may have died, been transferred to secure hospital or be serving a new sentence, for example. Furthermore, some of the offenders shown as having had a release decision following their initial recall could have then gone on to be recalled again and may currently be in prison. Ministry of Justice (IPP0179)

188 Q169 [Martin Jones]

189 Q178 [Martin Jones]

190 Independent Advisory Panel on Deaths in Custody (IPP0101)

191 UNGRIPP (IPP0118)

192 UNGRIPP (IPP0118)

193 Family member of an IPP prisoner (IPP0012)

194 Prison Reform Trust, No life, no freedom, no future: The experiences of prisoners recalled under the sentence of Imprisonment for Public Protection, December 2020

195 Ibid.

196 Ibid.

197 Napo (IPP0085)

198 Prison Reform Trust, No life, no freedom, no future: The experiences of prisoners recalled under the sentence of Imprisonment for Public Protection, December 2020

199 UNGRIPP (IPP0118)

200 Napo (IPP0085)

201 UNGRIPP (IPP0118)

202 Q153 [Martin Jones]

203 Progressing Prisoners Maintaining Innocence (IPP0056)

204 APPEAL (IPP0051)

205 HL Deb, 15 November 2021, col 31 [Lords Chamber]

206 HL Deb, 15 November 2021, col 31 [Lords Chamber]

207 Ministry of Justice (IPP0033)

208 Ministry of Justice (IPP0033)

209 Q171 [Martin Jones]

210 Q173 [Martin Jones]

211 HM Inspectorate of Probation, A thematic review of probation recall culture and practice, November 2020

212 Q169 [Caroline Corby]

213 Irish Community Care (IPP0052)

214 Q47 [Peter Dawson]

215 Independent Advisory Panel on Deaths in Custody (IPP0101)

216 See for example evidence from serving prisoners (IPP0133, IPP0149, IPP0152, IPP0154, IPP0167), Family member of an IPP prisoner (IPP0069).

217 Women in Prison (IPP0043)

218 Hilary Cotton, (IPP0035)

219 Dr Harry Annison (IPP010), Women in Prison (IPP0043), Prison Reform Trust (IPP0048), Emmersons Solicitors Limited North East (IPP0090), Dr David Price (IPP0024), evidence from serving prisoners (IPP0065, IPP0070, IPP0136, IPP0142, IPP0145, IPP0152, IPP0153, IPP0161, IPP0163), Family member of a serving prisoner (IPP0129)

220 Dame Anne Owers, National Chair, Independent Monitoring Boards (IPP0099)

221 Q51 [Peter Dawson]

222 Q53 [Dr Harris]

223 Women in Prison (IPP0043), APPEAL (IPP0051), Farrhat Arshad and Patrick O’Connor QC, Doughty Street Chambers (IPP0100), Francesca Cooney (IPP0104)

224 Francesca Cooney (IPP0104)

225 Irish Community Care (IPP0052)

226 Q110

227 Q110, Q128 [Professor Towl]

228 Ministry of Justice, Prisons Strategy White Paper, December 2021, pp31–32

229 Ministry of Justice, Prisons Strategy White Paper, December 2021, p48

230 Ministry of Justice, Prisons Strategy White Paper - Response to Consultation Questions, June 2022, p11

231 Ministry of Justice, Prisons Strategy White Paper - Response to Consultation Questions, June 2022, p10

232 R v Roberts & Others [2016] EWCA Crim 71, see paras 43–47

233 R v Roberts [2016] EWCA Crim 71

234 R v Roberts, para 46

235 The Parole Board, Parole Board Chief Executive’s Blog - 3rd Edition - October 2018, November 2018

236 Sentencing Academy (IPP0067)

237 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No.4 and Saving Provisions) Order 2012 (S.I. 2012/2906), article 6(a)

238 Qq 80 and 81 [Lord Thomas]

239 Sentencing Academy (IPP0067)

240 Donna Mooney (IPP0037)

241 APPEAL (IPP0051)

242 APPEAL (IPP0051)

243 Ms Farrhat Arshad (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS); Mr Patrick O’Connor QC (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS) (IPP0100)

244 Ms Farrhat Arshad (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS); Mr Patrick O’Connor QC (Barrister at Doughty Street Chambers, 54 Doughty Street, London, WC1N 2LS) (IPP0100)

245 Parole Board for England & Wales (IPP0031)

246 The Centre for Crime and Justice Studies, Justice Episteme (IPP0049)

247 Sentencing Academy (IPP0067)

248 UNGRIPP (IPP0118)

249 Ministry of Justice, Offender Management in Custody Statistics quarterly: January to March 2022, July 2022 (Table 1.9a)

250 Q112

251 The court held that setting the tariff was equivalent, in practice, to imposing a sentence – a role that properly falls to the judiciary rather than the executive.

252 Sentencing Academy (IPP0067) and APPEAL (IPP0051)

253 HC Debate, 11 June 2019, Col 286WH

254 See for example IPP0061, IPP0110, IPP0113, IPP0115, IPP0121, IPP0122, IPP0131

255 A victim of crime (IPP0115)

256 A victim of crime (IPP0116)

257 See for example Elizabeth (IPP0041), A victim of crime (IPP0061) A victim of crime (IPP0111), A victim of Crime (IPP0120)

258 Napo (IPP0085)

259 Sentencing Academy (IPP0067)

260 Prison Reform Trust (IPP0048)

261 Justice Committee, Towards Effective Sentencing¸ Fifth Report of Session 2007–08, HC184, paras 55–56

262 R v Roberts [2016] EWCA Crim 71, para 47

263 Professor Nick Hardwick (IPP0097)

264 Q59 [Peter Dawson]

265 Ministry of Justice, Serious Further Offences (SFO) 2021, October 2021

266 Ministry of Justice, Proven reoffending statistics: January to March 2020, January 2022 (Table C2a: Adult proven reoffending data, by custodial sentence length)

267 Parole Board for England and Wales (IPP0031)

268 Private roundtable held with Prison and Probation staff (10 January 2022)

269 A victim of crime (anonymised) (IPP0061)

270 Justice Committee, Towards Effective Sentencing¸ Fifth Report of Session 2007–08, HC184, para 42

271 Justice Committee, Towards Effective Sentencing¸ Fifth Report of Session 2007–08, HC184, para 45

272 HL Debate, 9 February 2012, Col 443

273 HC Deb, 11 June 2019, Col 286WH

274 Q91 [Lord Thomas]

275 Dr Harry Annison (Associate Professor at Southampton Law School) (IPP0010)

276 (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. (2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations

277 European Court of Human Rights, Guide on Article 7 - no punishment without law, para 48

278 Q4 [Dr Maganty]

279 For a full record of interests in relation to this inquiry see the formal minutes for the inquiry pertaining to meetings on 23 November 2021, 7 December 2021 and 14 December 2021.