Baroness Fox of Buckley:

Moved by Baroness Fox of Buckley

167: After Clause 48, insert the following new Clause—“Re-sentencing those serving a sentence of imprisonment for public protection(1) The Lord Chancellor must make arrangements for, and relating to, the re-sentencing of all prisoners serving IPP sentences within 18 months beginning on the day on which this Act is passed.(2) Those arrangements must include arrangements relating to the establishment of a committee to provide advice regarding the discharge of the Lord Chancellor’s duty under subsection (1).(3) The committee established by virtue of subsection (2) must include a judge nominated by the Lord Chief Justice.(4) A court that imposed an IPP sentence has the power to re-sentence the prisoner in relation to the original offence.(5) But the court may not impose a sentence that is a heavier penalty than the sentence that was imposed for the original offence.(6) In relation to the exercise of the power in subsection (4)—(a) that power is to be treated as a power to re-sentence under the Sentencing Code (see section 402(1) of the Sentencing Act 2020);(b) the Code applies for the purposes of this section (and, accordingly, it does not matter that a person serving an IPP sentence was convicted of an offence before 1 December 2020).(7) In this section—“IPP sentence” means a sentence of imprisonment or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 or a sentence of detention for public protection under section 226 of that Act (including such a sentence of imprisonment or detention passed as a result of section 219 or 221 of the Armed Forces Act 2006);“original offence” means the offence in relation to which the IPP sentence was imposed.(8) This section comes into force at the end of the period of two months beginning with the day on which this Act is passed.”Member's explanatory statementThis new clause would implement the recommendation of the Justice Committee’s 2022 Report that there should be a resentencing exercise in relation to all IPP sentenced individuals, and to establish a time-limited expert committee, including a member of the judiciary, to advise on the practical implementation of such an exercise.

I rise to move Amendment 167 on resentencing those serving a sentence of imprisonment for public protection. I thank the noble Lords, Lord Moylan, Lord Blunkett and Lord Woodley, and the noble Earl, Lord Attlee: what a formidable cross-party, cross-Committee group of people that is.

We have talked a lot about hopelessness, and I am aware that moving this amendment probably fits under that category, but I am going to do it anyway. Along with other noble Lords, I warmly welcome the Government’s incremental reforms in relation to IPP sentences contained as part of the Bill. It is brilliant that they restore some sense of fairness for IPPs, especially on licence, by creating a realistic prospect that the sentence could be brought to a definite end in the foreseeable future.

However, these moves will do little for the 1,227 people who, as we have discussed already tonight, have never been released, even though 98% of them have already served beyond their tariff, the majority of which were tariffs for less than four years. Yet 58% have been locked up for an additional 10 years on top of that original tariff.

The proposed reforms also will not help the further 1,625 individuals in prison because they have been recalled, largely—as we have discussed—due to minor licence breaches rather than committing further crimes. That is therefore nearly 3,000 people languishing in jail, effectively indefinitely, all due to this abolished and discredited sentence. They are not helped enough by the Bill. This resentencing amendment—Amendment 167—which is based on the Justice Committee’s recommendation, would resolve this iniquity. That is why it is backed by all serious commentators, professionals and campaigners on the issue.

However, I already know that the Government plan to reject the proposal. I was very disappointed and saddened that the Official Opposition also seemed to back the Government on this when it was discussed in the other place. I hope to persuade all noble Lords to move a little.

I will go through all the arguments shortly, but first I want to acknowledge something important. The fact that this amendment is unlikely to succeed will be bitterly disappointing for people serving IPPs, their families and all those working so hard on their behalf. Inspired by them and their resilience, however, it is important that these issues continue to be aired—that we continue pressing. As Sir Bob Neill, who chairs the Justice Committee in the other place, and can be described as something of a hero parliamentarian for tenaciously taking on this judicial aberration, said, until we get resentencing in some form, there is unfinished business.

I am also conscious that the noble and learned Lord, Lord Bellamy, warned at Second Reading that,

“the basic problem with the re-sentencing exercise is that you”— people like me—

“are raising expectations that people will be released.”—[Official Report, 18/12/23, col. 2134.]

I do not want to falsely raise expectations, and I am more than aware of that responsibility here tonight. Ringing in my ears I have the words of Shirley Debono from the IPP Committee in Action campaign. The last time that resentencing was rejected, she described the awful consequences of snatching away

“the last chance, the last hope.”

I am more than conscious of where this hopelessness can lead, and we have discussed the 86 people serving IPPs who have taken their own lives while in prison, with nine self-inflicted deaths in 2023 alone—the highest number in a single year since the IPP was introduced.

Also ringing in my ears are the words of the current Justice Secretary, Alex Chalk. He wrote in 2017 about the toxic legacy of IPP:

“Society should not have a bleeding heart about its prisoners. But it shouldn’t have blood on its hands either”.

That “blood on its hands” cri de coeur is powerful; indeed, it is daunting and humbling for all of us here today in terms of our responsibilities. However, I also want to focus on Mr Chalk’s point that opposition to IPPs is not a bleeding-heart approach. It is disingenuous to caricature this resentencing amendment as being all for the sake of the prisoners, and that those of us putting it forward have a naive indifference to public safety. We should remember that we got into this mess precisely because imprisonment for public protection was originally sold to the public by New Labour under the banner of public safety. Actually, the public were sold a pup and it failed abysmally.

Of course, the public want to be protected and, in the context of 2024, too many citizens feel that the criminal justice system is not serving public safety well enough. For example, the public look on at early release schemes that seem to involve, for example, men who have physically and sexually abused women and children leaving prison potentially prematurely—in comparison with IPP prisoners who are guilty of far less serious non-violent crimes but remain locked up.

If you consider what the public are feeling at the moment about the crisis in policing, with various police forces being put into special measures—most recently Nottinghamshire, for safeguarding concerns—some victims’ safety seems to get ignored. Look at those young women who suffered at the hands of the grooming gangs in the north of England while the police looked the other way. Then there is a general sense of insecurity, as street crime is sidelined and public disorder and intimidation on our streets seem to be given a free pass—or at least the police are confused.

However, rather than prioritising resolving those kinds of thorny issues, instead we are told that it is these few thousand IPP prisoners who are a danger to the public, and it just feels like a distraction. In the other place, the Justice Secretary claimed:

“The fact remains that there are around 3,000 people in custody … where the expert Parole Board has decided that this person is dangerous”.

My reply is: the fact remains that the criteria for labelling these specific prisoners as so dangerous that they need to be held indefinitely are dodgy. Where is the evidence, for example, that IPPs are a distinct group of offenders more dangerous than, for example, others sentenced post the abolition of IPPs who are subject to sentences with an eventual end date? How can the facts justify an IPP-er being in the same prison, and even sharing the same cell, as someone who has committed the very same crime or worse, on any objective measure of dangerousness? It is just based on an accident of timing: that is, they were unlucky enough to be sentenced during the time when IPPs were applied.

The reason they are not released is not to do with any crime they have committed but what they might do in the future, based on speculation, not facts. Indeed, Alex Chalk talks of people who

“could go on to commit appalling crimes”.

Yes, they could, but that is purely hypothetical. I therefore have to ask: is this a new policy of preventive pre-crime justice—locking people up in case something happens in the future? In the UK we have a system of justice that every day lets all sorts of people leave prison—rightly, because “they did the crime but they’ve done their time”—and, of course, they may reoffend and create future victims. However, unless we have decided to dispense with all sentences just in case, as a civilised democratic society we aim to manage that risk. Why are IPPs any different?

The noble and learned Lord, Lord Bellamy, warned at Second Reading that

“the people we are dealing with have been found not to be safe to be released”.—[Official Report, 18/12/23; col. 2134.] and called them “highly dangerous people”. However, how are these prisoners assessed as dangerous? It is certainly not based on their original crime and relies largely on two methods: the Parole Board’s assessment and the fact that they have been recalled back into prison. On the Parole Board, we have already heard about the especially stringent criteria demanded of prisoners: the onus on them to prove they are not a risk, and so on—which is almost impossible as the presumption is against parole.

However, the most galling of the hoops the prisoners are asked to jump through to prove they are safe is attendance on designated courses even though programmes are often postponed, cancelled or not available in my experience. Meanwhile, a lack of transparent evaluation of these courses in effect means that we hear that the Minister, let alone the Parole Board, cannot possibly guarantee these programmes’ reliable, evidence-based determination of dangerousness or otherwise.

If, against all the odds, the prisoners manage to get out over the hurdles, the fact that they are released on such ludicrously strict licence conditions means that they risk again being labelled as unsafe and returning to prison for infractions as petty as missed probation appointments that we have already heard about. However, a startling 73% of recalls do not involve further proven offences and are often based on hearsay or accusations.

Ishuba Salmon was released after spending three times his original four-year tariff in jail. After 18 months, he was recalled and accused of GBH, but at Birmingham Crown Court the prosecution offered no evidence and Ishuba was found not guilty. However, it was too late because he was back inside. Surely this makes a mockery of exoneration by a court of law.

The recall system for IPPs also makes a mockery of rehabilitation. Last week I met Ms Mandy Slade, the mother of David Parker, an IPP prisoner. He was recalled to prison with only six months left on his 10-year IPP licence. He is currently held in HMP Bristol, not on a charge, just in custody on recall. For that nearly 10 years that he was released, David led a trouble-free life. He turned his life around; he owns a roofing business that employed three people, he was a homeowner and he financially supported his three children. Sadly, he and his partner had problems and his ex left the family home with the children, making allegations against him, having previously threatened to use the IPP to send him back to prison. The allegations were false. We know that because the court heard David’s case and all charges were dropped, but it was too late. IPP rules mean that 10 years of David’s rehabilitation were all for nothing: he is back in prison and now, as we are discussing, because he is in prison he is dubbed “dangerous”.

Such iniquities are now being tackled in terms of recall, as we heard in the first group, but I raise it because, when we are told that this resentencing amendment threatens to let out dangerous prisoners—a point reiterated by a range of noble Lords including the noble Lord, Lord Ponsonby, at the end of the first group and the Minister—that includes mislabelling David Parker and others like him. The Minister says the recall population is rising, but some of them should not be brought back to prison at all and are there only because of the specifics of IPP, this discredited sentence.

David’s mother Mandy, who I met, suggested to me that her son could have been curfewed in the community or tagged in his own home. Her common-sense approach to managing risk is just the sort of spirit behind this resentencing amendment. It is not extreme or unreasonable. Indeed, it is designed to provide sensible solutions that should allay any fears that a resentencing exercise might be a chaotic mass release, as has been suggested in the past.

There is plenty of oversight built in and the amendment simply calls for a new sentence to be passed, but—and this is key—it does not require when or how it takes effect. This leaves room for an expert committee to examine and recommend any number of models that could minimise anticipated problems. For example, there could be a staggered resentencing exercise with a priority queue, beginning with those furthest on in their tariff or who received the shortest tariff.

The new sentences could be issued in limited blocks of a certain number per quarter to avoid mass release. According to the Prison Reform Trust, issuing 475 new sentences per quarter would address the entire imprisoned IPP cohort within 18 months, and then it would be done; we would have finished. Alternatively, the entire resentencing exercise could be completed within a stated period with a staggered system of release based on a priority queue and, where necessary, authorising referrals to mental health tribunals or reserving fresh judicial examination for any complex cases.

You could even look at delaying the formal passing of a sentence for a fixed-term preparation period of maybe six months. There is an element of this approach in the interesting, probing amendment to my amendment from the noble Lord, Lord Attlee, which suggests a delay until the Government are satisfied that the Probation Service has the capacity and resources to cope.

I am eager to see whether this can assuage the Labour Front Bench’s concern about a lack of infrastructure if resentencing is implemented immediately. If the Opposition supported this, I would be happy to accept this as a step forward to getting resentencing on the statute book even if there is a delay.

Obviously, there is a worry that this might kick the decision into the long grass, but at this stage I emphasise that, whether it is this Government or a forthcoming Labour Government, the issue of IPP prisoners needs to be fixed. It will be fixed, and this amendment gives a range of structured fixes, because any of the models could be developed and adapted, all with the help of an expert panel doing the necessary modelling and analysis to assess the cost-benefit analysis of options.

Regardless of the detail, what is needed here is imagination, creativity and innovation—an approach that I have been delighted to see from this very Government who embraced such a sense of innovation in resolving the Post Office injustices. It was an exceptional set of circumstances that the postmasters found themselves in. Well, the plight of IPP prisoners is also exceptional. After all, this Parliament abolished the sentence, deemed it no longer fit to remain on the statute book and now, more than a decade later, these 3,000 prisoners are the last part of putting that wrong right.

Finally, I want to refer to the noble Lord, Lord Clarke, and the Spat—or discussion—he had with the noble and learned Lord, Lord Garnier, earlier. It is important not to make assumptions about public opinion here. This is my final point. When confronted with the facts, the British public are always repulsed by miscarriages of justice. They believe in fair play. Whenever I have got people to read the campaign group UNGRIPP’s important comprehensive archive of articles, or Faith Spear’s Criminal Justice Blog, or to listen to the brilliant podcast series “Trapped”, they are horrified. They are absolutely disgusted that this is the way people have been treated.

By the way, I include in that journalists too—even Daily Mail journalists because, despite the way they are discussed here as though they were a different breed, they are after all our fellow citizens. We should be ensuring that every member of the British public knows about this scandal and not keeping it in-house. Peter Stefanovic’s video on the topic, mentioned by the noble Baroness, Lady Jones, in the first group, has chalked up 14 million views in a matter of months. The reaction is unanimously one of shock, outrage and disbelief. As one respondent noted, “Let’s not wait for an ITV drama to do the right thing”. Hear, hear. I beg to move.