Ongoing Issues regarding the Indeterminate Imprisonment of ‘Dangerous Offenders’

Written evidence from Dr Harry Annison,
School of Law, Southampton University (ppp0073)

Dr Harry Annison is Associate Professor in Criminal Law and Criminology at Southampton Law School, Southampton University. This response is based on the ESRC-funded research project published as Dangerous Politics,[i] which analysed the indeterminate Imprisonment for Public Protection (IPP) sentence and the underlying policymaking processes. It is further underpinned by the research project ‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of Imprisonment for Public Protection (IPP) families.’[ii]

Who is in prison

1 This briefing focuses on indeterminate prisoners – and specifically IPP prisoners – in England and Wales.

2 The indeterminate IPP (Imprisonment for Public Protection) sentence was introduced by the Criminal Justice Act 2003 and abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This sentence ‘falls little short of life imprisonment’,[iii] with prisoners only to be released once the Parole Board is satisfied that it is no longer necessary for the protection of the public that he or she remain confined.[iv]

3 It was promoted as a measure which would play an important public protection role - keeping the public safe from dangerous offenders – but would also benefit such offenders (and ultimately the public) by enduring that they received meaningful rehabilitative support.

4 In a highly risk-averse political climate, the IPP sentence understandably proved to be attractive to sentencers,[v] which led to the imposition of IPP sentences on a scale that has dramatically altered the composition of the prison population. Notwithstanding public assurances that it would result in ‘an additional 900 [prisoners] in the prison population’ over a ten-year period,[vi] the IPP prison population reached over 6,000 at its height in 2012.[vii] As of March 2018, 2,700 IPP prisoners remain in the penal estate,[viii] with nearly 90% being held beyond their minimum tariff period.[ix]

5 IPP-sentenced prisoners have been shown to suffer from disproportionately high rates of self-harm, with a rate of self-harm of 550 per 1000 prisoners, compared to 324 per 1000 determinate-sentenced prisoners and approximately 250 per 1000 life-sentenced prisoners.[x]

6 The sentence has been described as a ‘stain’ on the justice system by former Justice Secretary Kenneth Clarke. Former Home Secretary David Blunkett, who oversaw its introduction, has publicly regretted the ‘injustices’ caused by the sentence.[xi]

7 At an organizational level, the practical effect of the IPP sentence overwhelmed the Parole Board; demand for the provision of training courses and education far outstripped supply; existing systems for progressing prisoners through the penal estate were significantly deficient. A number of legal challenges have been brought by IPP prisoners;[xii] the Parole Board has been required to expend a significant amount of time and resources responding to legal challenges in specific cases.

8 The Parole Board’s own evidence to this inquiry states that while significant progress has been made in reducing the numbers of IPP prisoners detained in prison, ‘the Board is clear 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 and it can be expected that the rate of progression will slow down as the number of IPP prisoners in the system falls.’[xiii]

Reason prisoners are there, stay there, and return

Specifically as regards IPP prisoners, a number of issues can be identified:

9 As noted above, the parameters of the sentence are widely accepted to have been drawn over-broadly, capturing many more individuals in its net than was appropriate.[xiv] This IPP-specific issue has long term knock-on effects, both on the affected prisoners and the penal system as a whole.

10 A recent thematic report by the Chief Inspector of Prisons has made clear the on-going challenges faced by IPP prisoners.[xv] These include the under-resourcing of the systems intended to help prisoners to progress towards release; the flawed assumptions underpinning their sentences; the stigma attaching to the ‘dangerous’ label; and the difficulties of proving a reduction in risk to the Parole Board through participation in offending behaviour programmes.

11 I have elsewhere emphasized the issues regarding the ‘iatrogenic’ effects of indeterminate detention.[xvi] By analogy to medical interventions, this term refers to the potentially harmful and counter-productive effects of the indeterminate sentence, and the prisoners’ experiences of their efforts to move towards release, within a system that was ostensibly justified by its ability better to ‘heal’, to rehabilitate, that individual. Put simply, the significant duration of time spent in prison – which in addition continues to be indeterminate in duration and often well beyond the tariff period, the punitive ‘debt’ paid for the offence itself – is likely in many cases to make those sentenced to IPP worse, not better.

12 Recall of IPP prisoners to prison is a growing problem. Latest records show the population of such prisoners has reached almost 1,000. The Prisons Inspectorate has described the rate of recall as ‘concerning’.[xvii] As noted above, recalls can – and often do – occur for technical breaches of conditions that do not, in themselves, constitute a new criminal offence. Recalled IPP prisoners must then against demonstrate their safety for release to the Parole Board. They therefore tend to find themselves tangled up once again in the problems they faced when initially seeking to progress towards release from the prison system. Thus, the effects of the IPP sentence do not end once an individual is released from prison.

Prisoner Families

13 Recent research I have conducted with Dr Rachel Condry (Oxford University) has made clear the significant ‘pains’ experienced by family members and other individuals providing ongoing support to IPP prisoners. This is but one example of the broader effects of imprisonment on families, communities, and society.[xviii]

14 The findings of our report, ‘The Pains of Indeterminate Imprisonment for Families of IPP Prisoners: Findings and recommendations’,[xix] make clear that a pervasive sense of injustice and uncertainty underpins and permeates more specific concerns relating to efforts to progress towards release, and managing the stresses of life beyond release. Families report significant material effects, which appear to be heavily gendered in their distribution. Family relationships – both with the prisoner and more widely – are often heavily disrupted. Respondents reported significant negative health effects caused by the stress and anxiety.

15 The significant challenges faced by families will likely often, in turn, have effects on those in prison: whether that is families finding themselves unable to bear the difficulties and needing to reduce or even end contact; financial difficulties undermining efforts to support the prisoner; negative effects on family dynamics and individual members making it more difficult to support the prisoner on release; or other related challenges.

16 Family support is thus often an important factor in the successful release and continued avoidance of recall of IPP prisoners. But the work of the probation service, and their approach towards recall, is also key; as is the functioning of the recall system itself. A collaborative project with the Prison Reform Trust, ‘The Contribution of Families to the Resettlement of People Serving IPPs’, is currently underway that will seek to identify practical means by which relevant organizations can better support IPP families and, thereby, the successful ongoing release of IPP prisoners. This work may also have wider implications for supporting prisoners and their families, and we would welcome an opportunity to inform the Justice Committee of project findings and recommendations in due course, if desired.