1. Kevin Kerrigan, Associate Dean, Northumbria Law School, www.northumbrialawschool.co.ukwww.northumbrialawschool.co.uk

2. What is the problem? “Being in jail and not knowing when you’re coming home – it smashes your head to pieces.” SCMH report In the dark: The mental health implications of Imprisonment for Public Protection, 18 September 2008

3. A reminder of the previous law Mandatory IPP for dangerous offender convicted of serious specified offence (maximum sentence 10 years or more e.g. Wounding with intent) Mandatory extended sentence for dangerous offender convicted of non serious specified offence (maximum sentence less than 10 years e.g. Affray); Presumption of dangerousness if defendant had pre con for any specified offence unless it was unreasonable to do so

4. Assessing dangerousness There must be a significant risk of further specified offences (whether or not serious) And There must be a significant risk of serious harm to members of the public by such offences Serious harm = death or serious injury (may include psychiatric injury)

5. Operation of the sentence IPP – tariff for punishment followed by indefinite detention until Parole Board is satisfied that detention is no longer required for public protection. Indefinite licence imposed on release – released prisoner can apply annually for discharge of licence after 10 years Extended sentence – Minimum 12 month custodial period plus extended licence period of up to 5 years for a violent offence and up to 8 years for a sexual offence

6. Example 1 (previous law) John is convicted of burglary with intent to rape (max 14 years). The judge finds that John poses a significant risk of causing serious harm. The judge must impose: IPP (tariff period for punishment plus indeterminate period for public protection)

7. Example 2 (previous law) Charlotte is convicted of s.20 GBH ( max 5 years). The judge finds that Charlotte poses a significant risk of causing serious harm. The judge must impose: Extended sentence (custodial period minimum 12 months plus extended licence up to 4 years)

8. A reminder of the problems with the previous law No judicial discretion Huge numbers of offenders were made subject to public protection sentences No minimum seriousness of the trigger offence meant often fairly short tariffs on IPP sentences Lack of resources in prisons to enable prisoners to complete offending behaviour courses before their tariff expired

9. Judicial criticisms of the regime “labyrinthine” “astonishingly complex” “there is much to be said for a sentencing system which is intelligible to the general public as well as decipherable, with difficulty by the judiciary.” R v Lang [2006] 2 All ER 410

10. Wells v Parole Board [2009] 2 W.L.R. 1149 There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce IPPs... He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. Lord Hope at para.3

11. “I would only add that this case provides yet another example of the problems caused by over-prescriptive sentencing legislation. The draconian provisions... leaving no room for the exercise of any judicial discretion, created entirely foreseeable difficulties when sentences for imprisonment for public protection were passed with short tariff terms. Pelion was piled upon Ossa when for some unfathomable reason it was decided that the new scheme would be resource-neutral and so sufficient facilities necessary for IPP prisoners to demonstrate their fitness for release were not made available.” Lord Carswell para 22

12. “The maxim, marry in haste, repent at leisure, can be equally well applied to criminal justice legislation, the consequences of ill-considered action in this field being certainly no less disastrous. It is much to be hoped that lessons will have been learned.” Lord Browne

13. Just in case the government have not got the message “This was a perfect storm. It led to IPP prisoners languishing in local prisons for months and years, unable to access the interventions they would need before the expiry of their often short tariffs.” “It is as though the government went out and did its shopping without first buying a fridge.” “Prisoners and staff became increasingly frustrated with their Kafka-esque predicament, unable to access the interventions they needed in order to secure release.” “This report should be required reading for all those within the criminal justice system, but particularly those who propose and put in place new sentences or are responsible for implementing them. It is a worked example of how not to do so.” IPP Thematic Review

14. Some statistics July 2008: 4,619 prisoners serving IPP sentences. 150 new IPP sentences issued every month Short tariffs: average 30 months; min 28 days Only 31 IPP prisoners released from over 880 considered by the Parole Board

15. Statistics – stop press... Sentenced = 5,167 (up to end December 2008) Tariff expired = 1,711 (up to end April 2009) Release = 60 (up to end April 2009) Jack Straw MP, written answer, Hansard 10 June 2009

16. Mental health and Dangerousness “(iv) We considered arguments based on the inadequacy, suggestibility, or vulnerability of the offender,... Such characteristics may serve to mitigate the offender's culpability. In the final analysis however they may also serve to produce or reinforce the conclusion that the offender is dangerous.... as experience shows, aberrant moments may be productive of catastrophe. The sentencer is right to be alert to such risks of aberrant moments in the future, and their consequences.” R v Johnson [2006] EWCA Crim 2486 para. 10. As we said in Lang, the cases in which a psychiatric report will be necessary when assessing risk are comparatively few. But in those cases where such a report is thought to be necessary, it will generally be essential for the psychiatrist to make an assessment with regard to seriousness for the guidance of the sentencing judge. R v S and others para 101. NB power to impose a hospital order is unaffected: CJA Sch 32 para 38

17. Mental health related problems Prisoner and general population PrisGen Schizophrenia /delusional disorder 8% 0.5% Personality disorder 66% 5.3% Neurotic disorder (e.g. depression) 45% 13.8% Drug dependency 45% 5.2% Alcohol dependency 30% 11.5% Singleton et al, cited in the Bradley report at page 97

18. IPPs and mental health: Sainsbury Centre report Nearly one in five IPP prisoners has previously received psychiatric treatment One in ten is receiving mental health treatment in prison and one in five is on mental health medication – all twice the rate of the general prison population Over half of IPP prisoners have serious ‘emotional wellbeing’ problems compared with one-third of all prisoners. Proportionately more IPP prisoners had a social, cognitive or health problem serious enough to cause offending behaviour (‘criminogenic need’) in all ten assessment areas measured by the government’s risk assessment tool OASys, compared to life prisoners and the general prison population.

19. IPP sentence impact on mental health: findings of the Sainsbury Centre Report Many IPP prisoners emotionally distressed because they had no release date … indeterminacy eroding any sense of hope Indeterminacy damages relationships with family and friends, particularly for prisoners with children. Mentally / emotionally unstable prisoners often excluded from taking part in programmes entirely Prison mental health staff over-stretched, insufficiently resourced to manage IPP prisoners’ mental health needs. Prison services mostly medication focused … little or no provision for talking / counselling therapies Some IPP prisoners refuse mental health services or medication fearing it will prevent completion of sentence plan

20. “Sometimes I’ll sit in my cell. These courses are all about planning. [But] how can you plan when you never know when you’ll get out? How can you plan when you don’t know? You just have to sit there and try to numb yourself to a lot of it.” SCMH Report page 42

21. Problems with risk assessment: from the Thematic review study “No training was provided for staff.” Less than half Pre Sentence Reports used a full and accurately completed assessment of current and previous offending behaviour. Failure to appreciate the relevance of offenders’ diverse needs to the offending or future risk Only half of reports that had a risk of harm analysis gave sufficient consideration to risk issues Inflated risk calculation in 40% of cases “Overall, the quality of the risk of harm assessment was not sufficient to assist the courts adequately in deciding whether to impose an IPP sentence.”

22. Some recommendations of the Thematic review – back to basics Ensure PSRs are subject to quality control arrangements and contain a complete and accurate analysis of risk of serious harm that is capable of assisting the court Clarify who has overall policy responsibility for IPP prisoners Provide sufficient resources to effectively assess, manage, progress and provide reports Ensure that prison and probation staff working with IPP offenders receive training for their specific roles Ensure that new IPP prisoners are assessed for their state of mind and given appropriate support

23. The amended law on dangerousness CJA 2003 amended by Criminal Justice and Immigration Act 2008 In force for anyone sentenced after 14 July 2008 IPPs and extended sentences are no longer mandatory – they are simply another potential sentence IPPs and extended sentences apply only to offences which justify at least a 4 year sentence (unless there is a pre con for a limited number of very serious offences) Extended sentences become more widely available (for all specified offences – serious and non-serious) There is no presumption of dangerousness

24. Issues under the new law Removal of mandatory disposal is welcome but puts the onus on counsel and judge to carefully assess which disposal is required Is a public protection sentence required at all? If yes, should it be IPP or extended sentence? Imposition of extended sentences for non serious specified offences become much less common due to requirement for a 4 year sentence (cf where there are Sch. 15A pre cons) Courts must avoid imposing longer than appropriate sentences in order to circumvent the 4 year rule: s.152 CJA still applies Which should the court consider first: dangerousness or the notional determinate sentence?

25. Imprisonment for public protection s.225 There is a power (not a duty) to impose an IPP if: The offender is convicted of a serious specified offence The offender is deemed to be dangerous The offence justifies a 4 year sentence or the offender has a pre con for a Schedule 15A offence

26. IPPs and the “total protective sentencing package” “IPP... is the most draconian sentence available to the court.... the court is entitled to and should have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender. For example: a determinate sentence extended sentence sexual offences prevention order with appropriate conditions attached could form part of what we may colloquially describe as the total protective sentencing package. If [this] provides appropriate protection, imprisonment for public protection should not be imposed.” AG’s Ref 55 of 2008 Lord Chief Justice at para. 14

27. Extended sentence s.227 There is a power (not a duty) to impose an extended sentence if: The offender is convicted of a serious or non- serious specified offence [NB now available for serious specified offences] The offender is deemed to be dangerous The offence justifies a 4 year sentence or the offender has a pre con for a Schedule 15A offence

28. Dividing line between extended sentence and IPP? “... The short and deceptively simple answer is provided by our earlier reasoning. As we have emphasised, imprisonment for public protection is the last but one resort when dealing with a dangerous offender and, subject to the discretionary life sentence, is the most onerous of the protective provisions. In short, therefore, if an extended sentence, with if required the additional support of other orders, can achieve appropriate public protection against the risk posed by the individual offender, the extended sentence rather than imprisonment for public protection should be ordered. That is a fact specific decision.” AG’s Ref no 55 of 2008, Lord Chief Justice at para. 20

29. The Sch. 15A offences If an offender has a pre con for any of these then the court can impose a public protection offence even where the trigger offence is not itself very serious All carry max life sentence: Murder, Manslaughter s.18 wounding / GBH rape, sexual assault by penetration, serious sexual offences (where max is life imprisonment) serious firearms offences (endanger life, resist arrest, criminal intent)

30. Example 1 (new law) John is convicted of burglary with intent to rape (max 14 years). The judge finds that John poses a significant risk of causing serious harm. The judge may impose: IPP if and only if the offence requires at least 4 years notional determinate sentence or John has a Sch. 15A pre con Extended sentence if and only if the offence requires a custodial term of at least 4 years or John has a Sch. 15A pre con Any other available sentence.

31. Example 2 (new law) Charlotte is convicted of s.20 GBH ( max 5 years). The judge finds that Charlotte poses a significant risk of causing serious harm. The judge may impose: Extended sentence if and only if the offence requires a custodial term of at least 4 years or Charlotte has a Sch. 15A pre con Any other available sentence.

32. Considerations for the court Nature and circumstances of the trigger offence Nature and circumstances of any other offences But pre cons for specified offences do not create any presumption of dangerousness Any pattern of behaviour of which the offence is part Information about the offender –including any admissible evidence about previous bad character

33. Is the law now rational? “It is good that action has now been taken, both legislatively and operationally, to manage the crisis this has created – though not before it resulted in a finding of unlawfulness. However, the crisis has a long tail: there are thousands of prisoners already in the system who, together with the prison and probation services, will feel its consequences for a long time to come.” IPP Thematic Review “There can be no doubt there the new scheme for the treatment of dangerous offenders will represent a vast improvement on the 2003 scheme. The mandatory element, which has been the source of all the problems, disappears.” D.A. Thomas, IPP amended Arch. News 2008, 7, 5-9 Loopholes? Professor Thomas’ “minor arsonist”

34. Impact of new scheme on the prisoner experience This has led to a decline in the numbers of orders of IPP, but no less important for the administration of the sentence, for those subjected to IPP after 14 July 2008, there will at least be a reasonable time for the offender, and indeed the offender management system, properly to address IPPs and, in particular, for the risks which led the sentencing court to conclude that the public needed protection to diminish while the punitive element of the sentence is being served. Lord Judge, Wells and Walker, para.121

35. Resources Criminal Justice Act 2003 (as amended by the Criminal Justice and Immigration Act 2008) sections 225-229; Schedule 15, 15A Prison Reform Trust, 2007, Indefinitely maybe? How the indeterminate sentence for public protection is unjust and unsustainable Ministry of Justice, 2007, Service review: Indeterminate sentence prisoners (ISPs) (The Lockyer Review) Rutherford M et al, 2008, In the dark: The mental health implications of Imprisonment for Public Protection The indeterminate sentence for public protection: A thematic review, Prison Service and Probation Service, September 2008 SGC Dangerous Offenders – Guide for Sentencers and Practitioners, July 2008 www.sentencing-guidelines.gov.uk IPP amended, David Thomas Arch. News 2008, 5, 7-9