Secret Justice

Judgement rules indeterminate sentences violate human rights

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IPP sentencing: a stretch with no end in sight (image: Shutterstock)

The European Court of Human Rights has today ruled that a controversial indeterminate sentence imposed in England and Wales is a breach of human rights.

Three men who had served a sentence of Imprisonment for Public Protection (IPP), argued that the sentence breached their right to liberty as stated under Article 5 of the Convention on Human Rights.  This right was breached, it was decided, by holding them far beyond their specified tariff without providing them with the means to win parole.

A prisoner on an IPP sentence is held indefinitely until they can prove to the parole board that they no longer pose a risk to the public.

Such prisoners are supposed to prove risk-reduction by undertaking a series of rehabilitation courses, known as Offending Behaviour Programmes. But in the case in Strasbourg, the three men successfully argued that long waiting lists and poor availability meant they were unable to complete the required courses. They were subsequently kept imprisoned long beyond the end of their specified sentences.

Brett James, the main appellant in the case, was imprisoned for unlawful wounding with intent in 2005 and received a two-year tariff. Whilst in jail he struggled to get a place on required rehabilitation courses and the Parole Board refused to release him even after his tariff had expired.

The other two men involved, Nicholas Wells and Jeffrey Lee, were similarly frustrated by lack of course availability.

The three men had previously taken their case to the House of Lords in 2009, but the Lords ruled against them.

The IPP sentence was introduced under the last government, intended for offenders convicted of violent or sexual crimes for which the traditional life-sentence was not available. However, the sentence quickly proved extremely controversial.  It was blamed both for swelling prison numbers unsustainably and for imposing excessive sentences on offenders based on an abstract anticipation of future risk.

The former Justice secretary Kenneth Clarke described the sentence as a “stain” on the British Justice system and in May this year scrapped the sentence, although IPPs will continue to be handed down by judges until an as yet unspecified date later this year.

However, the new legislation did not apply retrospectively, and almost 6,000 prisoners in England and Wales are still serving IPP sentences  They account for almost 7% of the prison population. 3,500 of these are currently post-tariff, almost half of these by over double their sentence.

It is as yet unclear what the implications of today’s judgement are for these prisoners.

The Bureau has found that many of these post-tariff prisoners are still struggling to get places on their required Offending Behaviour Programmes and, in many cases, are still years away from completing their required rehabilitation.

Related article: A stain on the law – Imprisonment for Public Protection exposed

Tony Quinlan of Switalskis Solicitors, the firm that represented Brett James in the case, said: “Our client was unable to evidence his risk reduction to the parole board through no fault of his own, but because of insufficient provision of the required courses. This judgement has set a major precedent and will give the parole board a huge headache.”

He continued: “IPPs were always an ill-conceived, headline-grabbing and unworkable sentence.”

Kurt Moroz, a Ministry of Justice spokesman, said: “We are disappointed by this judgment and are currently considering our grounds to appeal. The judgment does not find that indeterminate sentences are unlawful, and will not mean prisoners currently serving IPP sentences will have to be released.

“We have introduced a number of key changes to improve the progress of existing prisoners serving IPP sentences. These include streamlined assessment processes, better sentence planning and prioritising places on courses.

“Until the case is final and all possible appeals are exhausted we do not have to pay compensation.”