On 14 August 2017, the Chair of the Parole Board, Nick Hardwick, gave an interview to BBC Radio 4’s ‘Today’ programme, in which he called for changes to the test to be met before prisoners serving sentences of Imprisonment for Public Protection (‘IPPs’) could be released by the Parole Board. The sentences were controversial when brought into force in 2005 and remain so to this day. Although the sentences were prospectively abolished in 2012, people sentenced to IPPs before that date remain subject to their provisions and more than three thousand people sentenced to IPPs are still in prison. The call by the Chair of the Parole Board was set against the background of one High Court and two Court of Appeal decisions handed down in July 2017, in which those courts rejected a range of challenges to the regime. This post considers the IPP scheme and the courts’ approach to the most recent challenges to the regime.
The Statutory Framework
IPPs came into force on 4 April 2005, by section 225 of the Criminal Justice Act 2003 (‘CJA 2003’), which provided that where a person over 18 was convicted of a ‘serious offence’ (as defined in the CJA 2003) and the court was of the opinion that there was a ‘significant risk to members of the public of serious harm’ caused by the offender committing further specified offences in the future, the court had to impose a sentence of imprisonment for public protection (unless the court was compelled to impose a sentence of life imprisonment). The sentence had two aspects. First, it was for the court passing sentence on the offender to determine the minimum period required to be served before the offender became eligible for parole (‘the tariff’). When the tariff period expired, it was for the Parole Board to consider whether the offender could be released. An offender could only be released, however, if the Parole Board was satisfied that it was no longer necessary for the protection of the public that the offender be detained. The minimum term, therefore, represented the punishment for the offence, whilst the indeterminate period was for the protection of the public.
Repeal
The CJA 2003 was amended by the Criminal Justice and Immigration Act 2008 (‘CJIA’), which was brought into force on 14 July 2008. The effect of one of the amendments was to remove IPPs from the sentences available to a judge where the notional determinate sentence was less than four years’ imprisonment. IPPs were abolished in all other cases for anyone falling to be sentenced on or after 3 December 2012, the date on which the repeal provisions contained in section 123 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) came into force. Section 123 of LASPO did not, however, apply retrospectively and so existing sentences of IPP continue to be lawful. LASPO also made provision, by section 128, for the Secretary of State for Justice to place a draft order before both Houses of Parliament with a view to varying the test to be applied by the Parole Board when deciding whether or not to direct the release of an IPP prisoner. To date, the Secretary of State has not sought to exercise the power under section 128 to vary the release test.
The Challenges
Various features of the IPP scheme, as it continues to apply to those prisoners who received IPP sentences before its abolition in 2012, have been the subject of recent challenges brought on behalf of two prisoners serving sentences of IPP: James Knights and Scott Henley-Smith. Those challenges have thus far been unsuccessful, though it is conceivable that they will be considered further on appeal.
James Knights
In respect of James Knights, the Court of Appeal heard two appeals: (i) an appeal against an unsuccessful application for judicial review in which it had been argued that the prisoner’s continued detention failed to comply with the ECHR, heard by the Court of Appeal (Civil Division) (James Knights v Secretary of State for Justice [2017] EWCA Civ 1053); and (ii) an appeal against sentence, following a reference by the Criminal Cases Review Commission, heard by the Court of Appeal (Criminal Division) (James Knights v The Queen [2017] EWCA Crim 1052, [2017] 2 Cr App R (S) 33). The appeals were heard jointly, though separate judgments were given.
Mr Knights was sentenced to an IPP with a determinate term of 8 months on 26 June 2008. Less than three weeks later, the statutory provisions introduced by the CJIA came into force, which abolished IPPs for offenders where the notional determinate sentence was less than four years’ imprisonment. Mr Knights’ tariff expired on 26 February 2009 but he was not released until July 2013 (though he was recalled on licence two months later, released again in March 2014, and recalled again in December 2014. He remained in custody at the time of the appeals).
On the appeal against the refusal to grant judicial review, it was argued on Mr Knights’ behalf: (i) that there had been a breach of Articles 3 and 5(1) of the ECHR (respectively, the prohibition of torture and inhuman or degrading treatment or punishment and the right to liberty and security), for which the Secretary of State was liable, as a consequence of the duration of Mr Knights’ detention and/or in light of the material legislative change; and (ii) that the appellant’s treatment was discriminatory by reference to those who had committed identical offences but were sentenced after 14 July 2008 (when the relevant revisions to the CJA 2003 came into force) and, therefore, in breach of Article 14 of the ECHR (prohibition of discrimination and the principle of lex mitior). The Court of Appeal (Civil Division) rejected each of these arguments, holding that: (i) Article 14 ECHR was not engaged: the Court was bound by the decision of the House of Lords in R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54. Even if Article 14 was engaged and assuming the date of conviction could amount to sufficient status to trigger art.14, the difference in treatment was inherent in the change in the law and was objectively justified: R. v Docherty [2016] UKSC 62 (ii) the claim insofar as it alleged breaches of Mr. Knights’ rights pursuant to Articles 3 and 5 ECHR could properly be rejected on the basis that the length of imprisonment was not such as to engage the principles in Vinter v United Kingdom (66069/09) (2016) 63 E.H.R.R (Article 3) and the causal link between the original lawful conviction and sentence and Mr. Knights’ continued detention had not been broken (Article 5) and of particular pertinence was the fact that Mr. Knights had been released and recalled to prison.
An offender subject to an IPP who has served the minimum term is no longer detained as a punishment but because of the risk that he poses and then only for as long as the Parole Board consider him to be a risk to the public.
On the appeal against sentence, the appellant sought to argue that the sentencing regime which came into effect on 14 July 2008 (when sentences of IPP for tariff periods of less than four years’ imprisonment were abolished) was less severe than the one under which he had been sentenced. To apply the earlier sentencing regime was, therefore, unlawful as contrary to the international principle of lex mitior . This argument was rejected by the Court of Appeal (Criminal Division), which was bound by the decision of the Supreme Court in R v Docherty [2016] UKSC 62. The appellant also sought to argue that even if the sentence was lawful when passed, it had become disproportionate to the crime committed, constituting a breach of Articles 3 and 5 of the ECHR. The Court also rejected this argument, noting that: ‘The minimum term to be served represents the punishment for the offence whilst the indeterminate period is for the protection of the public – see James, Walker and Lee v Secretary of State for Justice [2010] 1 AC 553. An offender subject to an IPP who has served the minimum term is no longer detained as a punishment but because of the risk that he poses and then only for as long as the Parole Board consider him to be a risk to the public.’ (per Thirlwall LJ at paragraph 38) As a matter of principle, the Court did not accept the argument that a lawful sentence could become disproportionate and so lead to a breach of either Article 3 or Article 5 simply by reason of the passage of time, particularly where, in Mr. Knights’ case, he had not been imprisoned continuously but had been recalled to prison by reason of his own conduct.
Scott Henley-Smith
Scott Henley-Smith applied for judicial review of the Secretary of State for Justice’s failure to consult upon, and then exercise, the power within section 128 of LASPO with a view to amending the release test to facilitate the release of prisoners serving sentences of IPP. Lang J. refused the application, finding that the decision of the Secretary of State not to legislate, or consult with a view to legislating, was a political matter which should be resolved in the political, rather than legal sphere and any interference by the Courts to require the Secretary of State to consult with a view to legislating would be a breach of Parliamentary privilege and contrary to the principle of the separation of powers. In any event, Lang J concluded, the Secretary of State for Justice had exercised his discretion lawfully – both rationally and proportionately – by considering whether or not to vary the test applied by the Parole Board when considering whether to release on licence offenders detained on IPPs, but deciding instead to improve the operation of IPP sentences, enabling more prisoners to meet the conditions for release.
Comment
The intervention of the Chair of the Parole Board appears designed to place pressure on the Secretary of State to give further consideration to whether the release scheme may be capable of being varied. During his Radio 4 interview, Nick Hardwick suggested that for people with tariffs under two years, the onus should be on the state to prove that they were likely to commit a further offence rather than the other way around. Of the 3300 still in prison on IPPs, this would apply to around 550 of them. Assuming the Secretary of State maintains his current position, as upheld by the High Court in Henley-Smith’s case, it seems the only way in which prisoners serving IPPs will be released is if they either manage to satisfy the current criteria for release, with the benefit of the enhanced resources and measures made available by the Ministry of Justice to enable prisoners to progress more speedily through the prison estate.
