4 December 2023
Today the House of Commons will hold a debate on the Victims and Prisoners Bill as it reaches report stage.
In the course of this debate, a series of amendments (PDF download) on the notorious IPP sentence will be considered, including one tabled by the government (New Clause 26). The proposal is an important step in the right direction for removing what the current Secretary of State for Justice has called a “stain” on the justice system.
It won’t help the 3000 plus people sentenced to an IPP and still stuck in prisons or secure hospitals to get out. But it would help to bring the sentence to an end more quickly for those the Parole Board have deemed safe for release. The distinguishing features of an IPP sentence compared to a life sentence is that it could have been imposed for less serious offences and that it could be cancelled any time after ten years elapsed from a person’s first release if the Parole Board ruled that licence conditions were no longer necessary for the protection of the public.
The proposed provisions may help to create a glimmer of hope for those on the IPP sentence that the end may be in sight sooner than previously anticipated.
However, they are quite complicated so I thought it might be helpful to explain my understanding of how they would work here.
What are the changes?
First, the plan is to reduce the period from when a licence might be cancelled from ten years after first release to three years. This is surely a positive step and certainly won’t put the public at risk as the Parole Board will still need to sanction termination at this stage and make a positive finding that licence conditions are no longer necessary to protect the public.
Second, at the moment once eligible for termination, a person’s suitability must be reviewed every year. The automatic annual review was brought in by the Police, Courts, Crime and Sentencing Act 2022. Before that, it was up to those who were eligible to apply. The proposal removes the express requirement for annual reviews altogether, presumably on the basis that the first review is now after three, rather than ten years from first release.
Third, at the moment, automatic reviews take place even if some has been recalled to prison. The new proposal removes that, but does allow the Parole Board to release someone unconditionally if they meet both the test for release and licence conditions are not deemed necessary to protect the public.
Fourth, there is a new sunset provision which will automatically deem the licence to end once someone who was first released over three years ago has gone on to spend an additional two years continuously on licence. Again, there is nothing about this clause that would put the public at risk. If someone has managed to comply with all their licence conditions for two years, when the Parole Board first deemed them safe for release at least 5 years ago, it’s likely they are not going to pose an unacceptable risk to public safety. Remember, all licence conditions include a requirement to be of “good behaviour” and anyone so risky as to be putting the public at risk of harm is unlikely to be able to comply with that for two whole years.
What does this mean in practice?
If carried, many people who were released between three and ten years ago will instantly become eligible for consideration of termination of their release.
It is essential that these people should be properly represented in the proceedings before the Parole Board as, under the proposed changes, if they are not successful the only subsequent way they can have their licence terminated will be once they have had two continuous years in the community on licence. This summer, I wrote about the very low (in one quarter only 16%) numbers of people who are currently represented in IPP terminations (and UNGRIPP and APL wrote to the Secretary of State for Justice asking him to give non-means tested legal aid to anyone going through these applications.
It is also not clear what this means for people who have already had unsuccessful licence termination reviews. Only around 35% of reviews so far have been successful and some will have related to automatic referrals made while the person has been recalled to prison. Based on the current law, any person who has already been through the process will have expected to have another chance in a year’s time. It is not clear whether, despite that expectation, the new provision will mean those who have already had a review will no longer get one. There is nothing in the new proposal to require annual reviews although as currently drafted there is nothing to expressly prohibit further reviews either.
If someone is released following recall and becomes immediately eligible for a termination review under the new process having never had one before, they are likely to have low prospects of success. This is because the Parole Board will have just made a decision that licence conditions are still necessary and decided not to exercise its power of unconditional release. Therefore, unless an opportunity to seek a deferral of the 3 year review is built in to the new system, someone in this position is essentially deprived of an effective termination review before the Parole Board.
Someone who has been out on licence for five years or more already, and has not been recalled for the last two years ending after the clause comes into force, will find their licence ceases to have effect.
However, someone who has been released for over five years and has had one or more periods of two years or more continuously on licence after the first three years but has been recalled within the two years preceding the government’s new clause will have to wait for two whole years to have elapsed, ending after the clause comes into force, for their licence to end automatically. This is the case even if the Parole Board has found that the recall was inappropriate and they were safe for release.
Some suggestions to make the new clauses more effective
The new clauses are a step in the right direction but, as presently drafted, raise a number of questions and could result in unfairness.
Legislators would do well to make provision for applications to be made to the Parole Board annually for anyone post three years first release and on licence in the community. This would resolve some of the potential concerns outlined above. This would also cure the unfairness of those who have been recalled inappropriately as they could subsequently apply for a termination notwithstanding the absence of two years continuously on licence.
Legal aid should be available without means testing for all IPP termination reviews to ensure that applicants are appropriately supported in the process.
Here is what the law would look like if the proposed amendment is made. Additions in red.
[F131AImprisonment or detention for public protection: termination of licences
(1)This section applies to a prisoner who—
(a)is serving one or more preventive sentences, and
(b)is not serving any other life sentence.
(2)Where—
(a)the prisoner has been released on licence under this Chapter [F2(whether or not the prisoner has subsequently been recalled to prison under section 32)]; and
(b)the qualifying period has expired,
the Secretary of State must, if directed to do so by the Parole Board, order that the licence is to cease to have effect.
[F3(3)Where—
(a)the prisoner has been released on licence under this Chapter (whether or not the prisoner has subsequently been recalled to prison under section 32); and
(b)the qualifying period has expired;
the Secretary of State must refer the prisoner’s case to the Parole Board under this subsection.]
(4) Where a reference is made under subsection (3) above—
(a) the Parole Board must direct the Secretary of State to make an order that the licence is to cease to have effect, unless paragraph (b) applies;
(b) if the Parole Board is satisfied that it is necessary for the protection of the public that the licence should remain in force, it must dismiss the reference.
(4D) The reference under subsection (3) must not be made, and a reference under that subsection must not be determined by the Parole Board under subsection (4), if at the time the reference or determination would otherwise be made the prisoner is in prison having been recalled under section 32.
(4E) Subsection (4F) applies where—
(a) but for subsection (4D), a reference of the prisoner’s case would have been made under subsection (3) or determined by the Parole Board under subsection (4),
(b) the Secretary of State has referred the prisoner’s case to the Parole Board under section 28 or 32, and
(c) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(4F) Where this subsection applies—
(a) the Parole Board must direct the Secretary of State to release the prisoner unconditionally, unless paragraph (b) applies;
(b) if the Parole Board is satisfied that it is necessary for the protection of the public for the prisoner, when released, to be released on licence in respect of the preventative sentence or sentences, it must not give a direction under paragraph (a).
(4G) Where the Parole Board gives a direction under subsection (4F)(a)—
(a) section 28(5) has effect in relation to the prisoner as if for “release him on licence” there were substituted “release the prisoner unconditionally”;
(b) section 32(5) has effect in relation to the prisoner as if for “give effect to the direction” there were substituted “release the prisoner unconditionally”.
(4H) Where—
(a) the prisoner has been released on licence under this Chapter (whether or not the prisoner has subsequently been recalled to prison under section 32),
(b) the qualifying period has expired, and
(c) the prisoner’s licence has remained in force for a continuous period of two years—
(i) beginning not before the qualifying period expired, and
(ii) ending after the coming into force of section (Imprisonment or detention for public protection: termination of licences)(2)(d) of the Victims and Prisoners Act 2023,
the Secretary of State must order that the licence is to cease to have effect.
(5)In this section—
“preventive sentence” means a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003 or a sentence of detention for public protection under section 226 of that Act [F7(including such a sentence of imprisonment [F8or detention in a young offender institution] or detention passed as a result of section 219 or 221 of the Armed Forces Act 2006)];
“the qualifying period”, in relation to a prisoner who has been released on licence [F9(whether or not the prisoner has subsequently been recalled to prison under section 32)], means the period of three years beginning with the date of his release.]
(6) The Secretary of State may by regulations made by statutory instrument amend subsection (5) to change the length of the qualifying period for the time being specified.
(7) A statutory instrument containing regulations under subsection (6) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
Section 32
32 Recall of life prisoners while on licence.
[F1(1)The Secretary of State may, in the case of any life prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.]
1A) Subsection (1) does not apply in relation to a prisoner in respect of whom the Secretary of State is required to make an order under section 31A(4) or (4H) that the licence is to cease to have effect.