Strasbourg has ruled indeterminate sentences unlawful. Thousands of prisoners, having served their tariff, remain stuck in prison with no prospect of release, not for what they have done but for what they might do in the future.
Tuesday’s judgement by the European Court of Human Rights established that it is a breach of human rights to keep people in prison indefinitely without access to rehabilitation courses to enable them to progress their sentence. This has implications for over 3,500 people serving indeterminate sentences for public protection (IPP) who are currently held beyond their indeterminate sentence tariff dates.
Since its introduction in 2005 the IPP sentence has wreaked havoc in the justice system and attracted near universal criticism from judges, Parole Board members, the prisons inspectorate, the prison governors’ association, staff and prisoners and families alike. The IPP sentence was abolished by the Legal Aid, Sentencing and Punishment of Offenders Act passed earlier this year, and the specific provisions in the legislation which will finally bring an end to the sentence are due to be enacted. However, this still leaves the problem of existing IPP prisoners who, because of a lack of available places on offending behaviour programmes which are overly relied upon to demonstrate reduced risk, are unable to work towards their legitimate release.
Therefore, it is disappointing that the new Justice Secretary Chris Grayling has announced his decision in the House of Commons to appeal the Court’s decision, telling MPs: “It is not an area where I welcome the court seeking to make rulings.” This is despite the UK Parliament’s own Joint Committee on Human Rights finding in 2008, in response to evidence submitted by the Prison Reform Trust, that the sentence “clearly breaches Article 5 ECHR (right to liberty) and Article 14 ECHR (enjoyment of ECHR rights without discrimination).”
It is shaming to have so many people locked up in our prisons, not for what they have done but for what they might do in the future. Many of these prisoners are condemned to years of uncertainty during which time they must somehow prove, from the confines of a bleak overcrowded jail, that they no longer present a risk to the public. As the Prison Reform Trust outlined in its evidence to the Joint Committee on Human Rights, the means to do this, attendance at scarce and not always reliable offending behaviour programmes, is barred to many people with a mental illness, learning disability, many of those on medication and anyone with a low IQ score, trapping these most vulnerable people in a maze with no exit.
Two approaches to our advice and information team help to illustrate this point. One concerned a person who received an IPP with a 71 day tariff and is now in his fifth year of imprisonment. The second involved someone with a brain injury, who was ineligible for offending behaviour courses and deemed, as a result, to be unable to make progress towards release.
The evidence on resettlement makes clear that reducing the risk of reoffending depends on an approach that takes into account an individual’s practical problems such as unstable housing, unemployment, debt and substance or alcohol misuse – a single intervention such as offending behaviour courses can have only a limited impact and does not do enough to support public safety.
To put matters right, more trust could be placed in prison governors and staff, probation and the Parole Board to determine the risk to the public presented by a few dangerous people rather than relying on the current obstacle race facing so many prisoners and their families. Now government has abolished the Kafkaesque indeterminate sentence for public protection, it’s time to return to a sensible system of fairness, proportionality and just deserts. Instead of appealing the European Court’s judgement, the ruling should prompt the Secretary of State Chris Grayling to institute a review of the cases of those held beyond tariff, and to use his discretion under the Legal Aid, Sentencing and Punishment of Offenders Act to change the release test and eradicate a stain on our justice system.