Crystal ball sentencing

Crystal ball sentencing

By: Douglas Salmon is currently resident in HMP Chelmsford

Douglas Salmon offers a personal perspective on the highly contentious IPP sentence
Have you seen The Minority Report? Tom Cruise has got three psychics floating in a pool comatose. They make predictions about crimes that are going to be committed: mainly murders. Old Tom's in there live-o with his badge and gun before they happen and they're up on charges. The story is about people being arrested and tried for crimes they haven't yet committed, but are predicted to commit. The reality is, here in Britain, we have our very own equivalent: the Indeterminate Sentence for Public Protection or IPP.

In April 2005, due to an increase in violent crime, there was a change in the sentencing law available to Crown Court judges. Instead of the automatic life sentence, people were being given a new type of sentence. The structure of the sentence is not known for sure by anyone within the prison service. I have had different versions of what it entails from my legal representative; prison staff; and inmates.

The IPP might be called a knee-jerk reaction to growing crime rates that is beginning to cause far more problems than it has solved. There are 50 to 100 people a week coming into custody with IPP sentences; clogging an already overcrowded prison system. Many see the IPP as a replacement for the old mandatory ‘two strikes’ sentence, which needed a repeat conviction for 11 specified offences. However the IPP covers no fewer than 157 offences, and can even be triggered by a first offence. As the specified offence that attracts an IPP sentence may in itself not be that serious, offenders are receiving relatively short tariffs, although they are still being classed as lifers.

What adds to the confusion is that judges are halving the minimum term for some offences, as well as deducting a period for guilty pleas. Over 50 per cent of IPP sentences are under two years, and the median tariff is around 30 months. By 2011 it is predicted that there will be 12,500 prisoners without a release date - 3,500 more than the current total. In December 2006 there were more people in prison serving indeterminate sentences than there were serving 12 months or under. Because the IPP covers 157 offences, judges are being drawn to it because it covers a wider spectrum than other sentencing laws. But the main problem affecting anyone involved in the prison system is that judges are recommending such small tariffs that offenders are being considered for parole almost immediately after sentence has been passed.

Then problems further down the line begin when prisoners stack up in the gateway jails in which they were received. They do not get the chance to undertake the various offending behaviour courses that will satisfy the parole board they are suitable for release. Also, spaces at Stage One lifer prisons are unavailable as the sudden change in the dynamics of the prison population was not foreseen by those who formulated the law.

IPP sentences have quadrupled the work for all the resources dealing with prisoners classed as lifers. There is also confusion amongst IPP-sentenced prisoners about how long they will have to serve before being eligible for parole. The answer is this: prisoners will have to serve the period up to their tariff as an absolute minimum.

Confusion for inmates also arises because the tariff corresponds to half of what they would have received if they had been sentenced to a determinate period. For example, a four-year determinate sentence is the equivalent of a two-year IPP, which means you will serve two years before being eligible for parole. But the confusion doesn't end there. As offenders are being considered for parole almost as soon as being sentenced, the prison service and other related groups are finding themselves unable to assess the individual and their needs. The parole board are then assessing someone for whom nothing has changed, as, in being sentenced to an IPP, they have only just been deemed a risk to the public.

The crucial point is: IPP sentencing laws set a new precedent in British justice in that people are sentenced on the basis of what they might do in the future rather than the case before the court. In effect, on an offence that they may well never commit. We're back to those three psychics floating around in a pool.

Also, the system that has now been created means that someone with a very small tariff, say 12 months for a not too serious crime, will end up doing about the same amount of time as someone doing a five-year IPP for manslaughter. Someone doing 12 months will take as long to get on, and complete, the relevant courses. With this message being sent out, people will see no need to limit the severity of their crimes due to the penalty incurred.

Another unforeseen factor of the IPP sentence is its effect on the families of people sentenced to an indeterminate term. They have no idea when they will be reunited. The IMB describes this as 'inhumane'. At one time in Britain, someone sentenced to a life term was not told their tariff. This was considered inhumane and the law subsequently changed. This old practice is now being repeated under the new guise of IPP. No one has yet been released on their tariff, so inmates know that this figure by no means represents the length of time they are likely to serve. There's no way they can tell how long they will be away.

And due to the increasing burden on the system, D-cat lifer / indeterminate prisoners are finding themselves unable to leave C-cat prisons. There are serious consequences involved in not moving these prisoners on. Local jails are not equipped to provide any of the relevant courses, leaving the prisoners unable to work on their sentence plan. This leaves their risk to the public high until they can reach a Stage One lifer jail. But once here the waiting lists to enrol on offending behaviour programmes will be long, and delays in starting, and completing, the courses, will be inevitable.

The courses available to IPP / lifers in Chelmsford, and many other local jails, are ETS and P-asro. If a place at a Stage One prison becomes available while the prisoner is engaged in ETS he will be expected to move, foregoing the course. But, despite this, the chances of a place coming up are unlikely (in the near future at least). Prisons are finding it difficult to process the increased rate of IPP-sentenced prisoners.

The prison service is not the only level that is unprepared for this increase, it also puts pressure on the parole board who are assessing prisoners for release when they have only just been sentenced. The prison service, probation service and parole board are finding themselves having to deal with a situation they are completely unprepared for.

The fundamental confusion at the heart of this sentence is that ministers responsible for the legislation covering IPP sentences do not consider IPPs as lifers. Neither do the courts. However, the prison service and the probation service do class IPPs as lifers. On top of this, most solicitors and barristers are unfamiliar with the guidelines concerning indeterminate sentences, and will offer a variety of different ways in which the sentence is structured and operates. There are also grey areas concerning how the IPP sentence joins to other sentences like recall, etc.

The IPP status has been successfully appealed because of confusion surrounding how it connects to other sentences. Depending on what the judge has said in court, appeals have been upheld on the basis that courts are unsure if these sentences can be served concurrently or consecutively.

Ultimately, the IPP sentence is an extreme addition to the sentencing laws. But what is surprising is how little it was discussed in parliament before its implementation. As a product of the 2003 Criminal Justice Act, the IPP was mentioned only once during the second reading of the Bill. Members of the Bar council, as well as some MPs, feel that the new sentencing laws covered by IPP are too severe. But it would seem that the Government is waiting to see whether in practice the policy works or not. When the problems implicit in the theory come about, it may well be that the law is repealed. We can only wait and see.

* Douglas Salmon is currently resident in HMP Chelmsford