5 April 2025
The stinging sense of injustice felt by many poeple serving IPP sentences when they are recalled for matters that in no other circumstance would warrant a period in prison has always been acute. It is even greater now that, following the implementation of the Victims and Prisoners Act 2024, any recall to prison will ordinarily reset the clock on the two clear years needed before the licence will expire in the case of anyone who was first released more than three years ago (or two years if they were a child at point of conviction). It was precisely for this reason that the Act was amended to include a discretionary power for the Secretary of State the disapply a period of recall for the purpose of the two clear years counting towards expiry. The new power was described by the Lord Chancellor in the Commons in September 2024 as to:
“Allow the Secretary of State to determine that, for the purposes of the two-year automatic licence termination period, the prisoner’s licence is treated as having remained in force as if it had not been revoked, where it is in the interests of justice to do so. This means that for an IPP or DPP offender released by the Parole Board or the Secretary of State, the Secretary of State can disapply the impact of the recall on the two-year automatic period which will not reset upon the prisoner’s re-release from prison.”
The amendment was introduced following a proposal by former Lord Chief Justice, Lord Thomas. Introducing the idea in a debate on 12 March 2024, he explained his rationale as “putting right a possible injustice in how the legislation is drafted”:
“Sometimes, there is a mistake in the recall. The Lord Chancellor or the Secretary of State can set that aside and revoke the recall. He does so if there has been a mistake. However, the problem with how the legislation is drafted—this is a highly technical problem—is that if he recalls the person but decides subsequently that it was a mistake, the two-year period is interrupted. That is unjust. Why should you be prejudiced by a mistake? The very simple Amendment 150 deals with human error, so that the offender is not prejudiced.
Amendment 151 deals with a very analogous problem—what happens if a person is recalled by the Parole Board, in the exercise of its judgment in respect of what is known as the Calder jurisdiction? I need not go into this matter in any detail because the point is a simple one. If the Parole Board decides that it was inappropriate to recall him but that he is fit for release, again, the effect of that in the Bill, as currently drafted, is that it breaks the two-year period and therefore the person has to start all over again. It is a bit like going round the Monopoly board and being sent back to the start again. This is something that we should not have.”
The Government’s own subsequent amendment to disapply a recall period where it was considered in the interests of justice to do so, was therefore very welcome.
The power became law in November 2024. However, the critical question is whether or not it will be used, as it is a discretionary power. When asked as to the circumstances in which it might be used, the then Government spokesperson, Lord Bellamy said on 21 May 2024:
“I was asked by the noble Lord, Lord Carter, whether I can give any examples of what might be in the interests of justice in that instance. My official advice is that I cannot, because that would pre-judge particular circumstances. I can say in my personal capacity, however, that one could imagine, theoretically and hypothetically, that a recall made rather close to the expiry of the licence term, when the effect might be to restart the two-year clock—or a recall made in circumstances where there had been an arrest but subsequently there were no charges, or nothing was done to pursue the matter that led to recall—might be instances where this kind of power could be useful. I think that is as far as I can go on that matter.”
I therefore asked a Freedom of Information Act request to find out on how many occassions it had been used. The response, dated 27 March 2025 was disappointing – it has not been used at all:
“As of today’s date, the Secretary of State has not disapplied the recall period in accordance with Section 32ZZA (4) of Crime (Sentences) Act 1997 (life sentences) in any case since the provision was introduced, for any IPP offender recalled on or after 1 November 2024.”
Surely, there will have been instances since November 2024 where it was not in the interests of justice for the recall period to count towards the two clear years and I would urge all practitioners to advocate for this power to be used and for the Secretary of State to start using this power where it is appropriate to work towards eradicating this stain on the system.