Let’s call him David. David had been a truculent youth, in trouble with the law before, though in summing-up the judge said he believed, on the evidence, that “you do not have a serious mental illness”. But David could fly violently off the handle. When he was 24 his girlfriend split up with him. In misery and rage he put a “small amount” (said the judge) of petrol in a milk bottle, lit a rag in the top and flung it at the wall of her house in her front garden, terrifying her and her family, though no serious damage was done.
Arrested, he finally pleaded guilty to arson, causing damage and being reckless as to whether life would be endangered. But “I sentence you”, said the judge, “on the basis that your intention was not to endanger their lives, but to frighten them”.
“I would have imposed a sentence of five years,” he concluded, adding that in practice this would have meant two and a half years inside.
Instead the court took advantage of a new sentencing option called “imprisonment for public protection”. An IPP put a dangerous offender behind bars without limit of time, unless or until it could be shown he no longer represented a serious risk. Prisoners could apply to the parole board for release on licence, but if released they would be returned to prison for any breach of the law.
So it could be for life. David has now been inside for almost 17 years, for a crime for which his sentence would have meant about two and a half. Parole has been refused after minor brushes with authority but my friend Carl, who visits him, says his state of mind has been affected by despair and dejection at being imprisoned with no release date. He has become institutionalised, but Carl says he “presents as a calm and well-orientated person who has lost his youth”. David is now 40.
On recent figures more than 3,000 IPP prisoners are rotting in our jails. According to an important paper by Dr Harry Annison of Southampton University, some 80 per cent of them have now gone beyond what would have been the tariff for their crime. Around 470 are more than eight years beyond.
The effect on these people and their families outside is appalling. In 2015 the Prison Reform Trust reported that the incidence of self-harm per thousand IPP prisoners had risen to 550, almost three times that of prisoners serving a life sentence. Without certainty, prisoners despair. There have been suicides and attempted suicides, and there will be more.
Prepare yourself, then, for a shock. IPPs were abolished nearly a decade ago!
Labour’s David Blunkett introduced them as home secretary after a few well-publicised incidents of reoffending by violent or sex offenders. The sentence was intended to be sparingly used but the courts started dishing out IPP sentences by the bucketload.
It had been estimated some 900 such sentences would result. When the figure passed 8,000, ministers took fright. Blunkett has said the outcome “weighs heavily” on him. And in 2012 Kenneth Clarke, justice secretary in the 2010 coalition government, scrapped the sentence altogether.
But to rebut (I suspect) accusations that ministers were “soft on crime”, existing IPP prisoners were to stay locked up, though no new ones would be sent down. Clarke himself later described the anomaly as “absurd”.
IPP inmates, trapped among other prisoners who know their release dates, suffer the injustice as you or I would.
The understaffed and hard-pressed Parole Board, meanwhile, faces a waiting list of IPP prisoners where in each case the board must prove a negative before release: that the applicant would not be a serious risk if released on licence.
Some undoubtedly would: three in ten of all prisoners of every kind do re-offend. The more IPP prisoners they release, the more likely a grisly case of re-offending will hit the headlines. Ministers quail before that prospect. Yet they know the injustice is monstrous, and all those with whom I’ve discussed this are deeply uncomfortable about it.
Will nobody, then, bite the bullet, cut the Gordian knot? I have thought hard about how and why we got here, and how we might see justice done, and have come to a stark conclusion. The problem with IPPs was not that the case for them was weak but that it was too strong.
We imprison a man (it’s mostly men) for a tangle of reasons. One strand is deterrence: “Make an example of him! Warn others off.” Another is retribution: “Serves him right!” A third is reform: “Prison could straighten him out.” Study home secretaries’ speeches at party conferences over the years and you’ll hear all these thoughts.
But there’s a fourth strand that only the more loose-lipped kind of politician mentions, yet it’s strong in the public mind. Removal. “One more behind bars is one less on our streets.” Take criminals out of circulation.
“Put him away so he can’t do more harm” is in direct conflict with what English law has always seen as due process: that there’s tariff, a set price for a criminal action; and even a convict is entitled to know what price must be paid and entitled to release once he has paid it.
Once “removal” is acknowledged among the purposes of imprisonment, the reasoning will stretch. The judiciary were lowering the bar and multiplying the numbers when Clarke intervened to stop it. The original IPP legislation covered 153 specified offences but any shocking example of an offence not yet on the list could be used as an argument for adding it. IPPs were taking us down a slippery slope.
IPPs may have gone but the thinking behind them is still gaining ground. We’re sliding into an acceptance that tendencies, habits of mind, characteristics, types of person, patterns of behaviour, can be criminalised, rather than particular acts. The act then becomes evidence for the crime, rather than the crime itself.
If a child-beater is sentenced not just for a particular instance of beating a child, but for being a child-beater, it becomes reasonable to ask him to prove he is no longer a child-beater before he can be released.
I hope in future to write more on this, looking at the relatively new crime of “controlling or coercive behaviour”. But meanwhile, what’s to be done about the 3,000 prisoners serving a sentence that has now been abolished? The answer is as simple as it is politically difficult. Urgently reassess each prisoner with a view to release wherever possible. Has any minister the guts to propose this? I doubt it.
Matthew Parris joined The Times in 1988. He worked previously at the Foreign Office, as Margaret Thatcher’s correspondence clerk and as Conservative MP for West Derbyshire. He was the paper’s parliamentary sketch writer for 13 years and he now writes a diary column on Wednesdays and an opinion column on Saturdays. In 2015 he won the British Press Award for Columnist of the Year. Matthew is also a regular columnist for The Spectator and presents the biographical program Great Lives on Radio 4. He has authored a number of books, including Chance Witness, his autobiography which won the Orwell Prize in 2002.