Not Saussure

April 10, 2007

Indeterminate sentences

Filed under: Law — notsaussure @ 1:25 pm

Puzzled by this.

The Guardian reports that, among other concerns,

The Prison Governors’ Association – whose members face the daily challenge of managing the record 80,000 jail population in England and Wales – has warned that a substantial overuse of new “indeterminate” sentences is creating chaos

In the course of giving ‘evidence to the influential Commons home affairs committee, Paul Tidball, the PGA president’, apparently explained that

The prison governors are also alarmed that the new “indeterminate sentence” – under which no release date is set by the court – is being “substantially overused”. Latest figures show there are 8,759 prisoners serving such sentences – an increase of 31% in the last year alone. Mr Tidball said too often the courts were choosing to leave fixing a release date to the parole board later because it was the “lowest-risk option”.The sentence was supposed to be reserved for those posing a high risk to the public but 20% were only medium-risk offenders, and in many cases were being sentenced without proper risk assessment, such as a psychiatric report.

I assume Mr Tidball’s evidence is written evidence submitted to the Home Affairs Committee’s Inquiry Into Effective Sentencing; since the committee has yet to hold a public session, there’s not much on the Committee’s website about all this, and I can’t find Mr Tidball’s evidence anywhere.

As they stand, though, his remarks puzzle me no end. Indeterminate Sentences for Public Protection — IPPs — are one of David Blunkett’s bright ideas, as enshrined in Chapter 5 of the Criminal Justice Act 2003. An IPP is very like a discretionary life sentence; the difference is that, eventually, a prisoner serving an IPP who is released on licence may, in certain circumstances, no longer be subject to recall to prison, while someone sentenced to life remains at risk of recall until the day he dies. The main practical difference, though, is that the minimum tariff set by the sentencing judge is what he’d have been minded to impose had he been passing a determinate sentence.

Thus, someone convicted of GBH with intent for a second time may well be told that under normal circumstances he’d have been sentenced to (say) four years, leading to his release on licence after two, but, because of the requirements of CJA 2003, he has to be given an IPP. Consequently, he cannot be released until the Parole Board think it safe to release him, but, in any case, he can’t be released until the two years he’d have served under normal circumstances have elapsed.

In some cases, the judge is required by the CJA 2003 to pass an IPP unless he’s satisfied that it would be unreasonable so to do; in others he’s required to consider it but the law doesn’t require him to make any assumptions about whether to pass one or not. The whole area is horribly complicated — ‘labyrinthine’ was the word the Court of Appeal used in R v Lang & Others, where they said that

The fact that, in many cases, the sentencers were unsuccessful in finding their way through the provisions of this Act […] is a criticism not of them but of those who produced these astonishingly complex provisions. Whether now or in the fullness of time the public will benefit from sentencing provisions of such complexity is not for us to say. But it does seem to us that there is much to be said for a sentencing system which is intelligible to the general public as well as decipherable, with difficulty by the judiciary.

and tried to establish that the sentencing judge has to be able to use his discretion, whatever presumptions about dangerousness the Act says he should make, a theme that was revisited by R v Johnson and Others.

What puzzles me, though, is the idea that courts are handing out these sentences as ‘the lowest-risk option’. They’re supposed to be reserved for cases where, in the words of the Act

The court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission…of further specified offences. (225(1)(b))

and, at least in my somewhat limited experience, judges more usually find themselves explaining why they’ve found it unreasonable to form such an opinion, despite the presumptions the Act says they should make in the light of the offender’s previous history, than explaining why they’ve reached the conclusion that there is a significant risk of serious harm even though there’s no statutory presumption they should reach one.

And I simply cannot believe that 20% of the people serving IPPs were given them despite pre-sentence reports saying that they only presented a medium rather than a significant risk of serious harm and that the Court of Appeal then upheld the sentences. The pre-sentence report doesn’t bind the judge, of course, but it’s usually considered a pretty weighty piece of evidence when it comes to assessing dangerousness.

I wonder, though, if The Guardian may not have misunderstood Mr Tidball’s point. I see that, when the inquiry was announced, The Telegraph reported his as saying that IPPs are

more resource-intensive, in terms of processing and assessing prisoners, than a determinate sentence. They are subject to assessment throughout, very much like someone serving an actual life sentence.

. The same report quoted

Brian Caton, the general secretary of the Prison Officers Association, [who] said: “Because of the sudden rise in prisoners serving indeterminate sentences, the system that we have, which is designed for a relatively small amount of lifers, cannot cope.”The constant need to review indeterminate prisoners has a huge impact on the Prison Service. This is symptomatic of the appalling lack of planning the Government has applied to prisons.”

That is, that the Prison Service and the Parole Board don’t have the resources to review the progress of people serving IPPs to determine whether they’re safe to release or not and that the Parole Board (doubtless mindful of possible headlines about potentially dangerous prisoners being released to commit further serious crimes of violence) are taking the attitude that it’s better to be safe than sorry when it comes to considering releasing on licence someone serving an IPP.

The Telegraph report tells us that

One in five [prisoners serving an IPP] has a tariff of 18 months or less. Most are held in local prisons intended for short-term stays, which do not offer “lifer” rehabilitation programmes.

This perhaps needs clarification; on the face of it, it looks as if IPPs are being handed out indiscriminately. However, what I think we have here is a result of the confusion between sentencing for the instant offence — which is how the tariff is set — and assessing dangerousness, which is a far more nebulous idea.

As a specific example, not so long ago I was involved in a case where a woman, who’s clearly got serious problems, came to be sentenced for a second offence of arson being reckless as to whether life was endangered; essentially, the poor woman has a history of making attempts at suicide by locking herself in her flat and setting fire to the place, thus, of course, endangering not only her life but the lives of other residents of the building and of the firefighters who are called to tackle the blaze. For her first offence, she’d received probation with the condition she received psychiatric help. Unfortunately, this didn’t prove effective and she tried again a year or so later.

Now, the appropriate determinate sentence, before the relevant provisions of the CJA came into force, would apparently have been three years or thereabouts. However, it seemed to the judge — and it’s hard to disagree with him — that there was no cause to think that it was unreasonable to assume (as the Act says he must in such circumstances) that there was a significant risk she’d try again, thus putting members of the public in danger of serious harm. Consequently, he had no choice but to give her an IPP with a minimum tariff of 18 months, equivalent to the 3 years he’d otherwise have given her. Now, of course, it’s up to an overstretched prison service and parole board to attempt to predict what her state of mind is likely to be at some point in the future, and to determine whether she’s safe to release or not.

Or, in a possibly more typical case, and one in which people — well, me, certainly — may well feel considerably less sympathy for the offender, there was a young chap who’s pretty obviously a nasty and unpredictable piece of work, particularly when he’s in drink, which is most of the time. He fell to be sentenced for an incident where, as he had done once before, he’d had a drunken row with his girlfriend and relieved his frustrations by laying into a member of the public — who’d done nothing other than to have the misfortune to be passing by at the time — with a bottle and, after he’d knocked him to the ground, by kicking him to the head several times. Fortunately, the victim wasn’t that seriously injured, though obviously he could have been. The judge would have given the guy six years for GBH with intent but, because of his record, thought — and, again, it’s difficult to argue with his conclusion — that the chap seems, at present, all too likely to do something similar again, so he had to give him an IPP with a minimum of three years.

Now, people obviously change a lot between the age of 17 (as is this chap) and 20, and let’s hope that in three years time he’s calmed down a bit and that the Parole Board feel able to release him (assuming, that is, that imprisonment hasn’t actually made him worse, which is always a possibility). But I don’t envy them their job, trying to predict the future. Nor do I envy them their job when they come to consider the woman who starts fires to harm herself, who, I suspect, they’re likely to consider probably poses a greater risk than does the young thug since her behaviour’s caused by far deeper-rooted problems than is his, even though they may well feel considerably more sympathetic to her than to him.

Ultimately, I think we have to consider whether IPPs are a good idea at all. The arguments in favour of them are superficially attractive — no one could feel easy about releasing the woman knowing that she’s likely to start more fires or releasing the young chap knowing that it’s likely only a matter of time before he gets plastered again and bottles someone else, possibly with far more serious results — but I’m really not at all sure that keeping someone in prison indefinitely because you’re worried about what he might do at some point in the future is the way to go. If you do, you end up — as we are doing — with an ever increasing number of prisoners serving far longer than their actual offences merit because people are understandably worried about what they might — but, then again, might not — do if you ever let them out and what the papers will say if you do take the risk and it goes horribly wrong.

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  1. ..but I’m really not at all sure that keeping someone in prison indefinitely because you’re worried about what he might do at some point in the future..

    But in the cases you cited, it was more than clear that there was a reasonable chance of a recurrence. I don’t think we can play games with this thing. If the person is a menace, he’s a menace. Should we execute him?

    Comment by jameshigham — April 10, 2007 @ 2:08 pm

  2. That’s the problem, though. At the time of sentencing, the judges clearly believed (and it’s hard to disagree with them) that there existed ‘a significant risk to members of the public of serious harm occasioned by the commission…of further specified offences.’

    My concern,though, is what happens eighteen months, or three years, or whatever it is, down the line when the Parole Board have to decide whether that significant risk of serious harm still exists.

    What’s happening now, and will happen more and more frequently in the future, is that the Parole Board has to try to predict what may someone may do in the future, and the natural tendency is to keep people locked up indefinitely — for offences which, had they fallen to be sentenced before 2003, would have seen them inside for a couple of years — because the prison service is too overstretched properly to monitor their progress and because some risk exists not necessarily that they’re menaces, but that they might be, and it’s better to be safe than sorry. How many people do we want to keep locked up, and for how long? I just don’t think the implications were thought through when the CJA was passed. In fact, given the legislative mess that section certainly is, I’m sure they weren’t.

    Comment by notsaussure — April 10, 2007 @ 2:28 pm

  3. It’s simple, Mystic Meg should sit on the Parole Board!

    Comment by jailhouselawyer — April 10, 2007 @ 4:49 pm

  4. Maybe they ought to give the woman who keeps trying to kill herself with fire an ABSO – like that poor woman who kept jumping in the river and received one. I have personal experience with a suicidal woman who succeeded in killing herself in a similar manner: she at least chose to do it in a garage away from the house. The fire was so fierce that no one could get near it, meaning there was nothing we could do except listen to her screams while she died.

    To get back to the point, it seems apparent that the indiscriminate sentences are being used far too widely, but the whole way they’ve been introduced as you’ve described was always going to mean that this was going to be the case. It means that judges can leave the difficult decision of whether someone should be released after they served the minimum time to the parole board instead – meaning that if the person re-offends they get the blame instead of the judge.

    I mostly agree with you that they in practice they’re a good idea – it’s just that as so often with New Labour they’ve been introduced with little thought for the wider consequences.

    Comment by . — April 10, 2007 @ 6:35 pm

  5. You say, Obsolete,that ‘the indeterminate sentences are being used far too widely’. The problem is, though, that the judge doesn’t have any choice in the matter if he finds (oversimplifying a bit) that ‘there is a significant risk to members of the public of serious harm occasioned by the commission…of further specified offences.’ If that’s his opinion, then he’s got to pass an IPP, whether he wants to or not (which, in the case of the woman who kept on trying to set fire to her flat, I don’t think he did).

    I’m really not sure that Parliament realised — in fact, I’m certain they didn’t — that by voting for these measures they were, in effect, introducing something very akin to mandatory life sentences, albeit with a very short minimum tariff, for a whole range of crimes if committed under particular circumstances.

    Part of my point was that, while the Prison Governors’ Association may well be correct in saying that a considerable number of people serving IPPs don’t, in fact, now pose a serious risk, when they were sentenced the courts had little choice but to find that they did (and, presumably, the Court of Appeal agreed). But we’re now faced — the Parole Board is faced — with the problem of whether or not to act on this new assessment that prison’s had some effect and they don’t pose as much of a threat as they did three or four years ago.

    I’m not at all sure I do think it’s a good idea in practice, or at least not the way that Parliament has left it. Perhaps if it were left up to the judges in the individual case to decide whether an IPP was appropriate it would be different, but, as it is, the way the law’s set up, far too many are, in my view, required to be imposed.

    Comment by notsaussure — April 10, 2007 @ 7:22 pm

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