Indeterminate Sentences can breach human rights

18 September 2013

Three men have taken their case to the European Court of Human Rights to argue that their human rights were being breached because of the requirements of their indeterminate sentences.

An indeterminate sentence is a sentence referred to as an IPP (term of imprisonment for public protection) and they were able to be imposed under the law in England and Wales until May 2012 in serious cases where offenders have a pre-existing specified serious offence and have committed a second which comes within the same criteria.  A Judge then could pass a sentence of imprisonment for public protection which specifies the minimum amount of time that an offender has to serve before being released on licence (tariff).  However, the requirements of an IPP are similar to those serving life sentences in that they are required to complete a number of rehabilitation courses whilst in prison before they can be considered to be safe to be released.  A lot of prisoners are having their releases delayed beyond the minimum period for the pure fact that the courses they are required to complete are not available to them quickly enough. 

The IPP was introduced in 2003 for the purpose of holding those who commit serious offences to ensure that they were only released when they were no longer a threat.

The men who took their case to the European Court argued that they were unable to get on the courses to show that they had changed and therefore could not be considered for release for reasons beyond their control.

One of the men, Brett James, who had been jailed with a minimum term of 2 years for an offence of unlawful wounding within intent, had completed some of his courses in prison, but was unable to get a place on an anger management and substance abuse programme which was deemed necessary before he could be considered for release by the parole board.  The two other men taking their case to the Court in Strasbourg, Nicholas Wells and Jeffrey Lee, based their cases on similar experiences.  All three had previously taken their case to the appeal in England and Wales but the had ruled against them.  As part of the arguments put to the European Court, they argued that their right to liberty under the Human Rights Act had been breached because of a failure to put them on the courses which would in turn allow the parole board to properly assess their progress.

There are currently 6,000 IPP prisoners in England and Wales which equates to 7% of the total prison population. 

The Judges at the European Court said “it is clear that the delays were a result of a lack of resources”.  They went on to say that the fact that there were inadequate resources “appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures”.  As to the length of time the men had been in custody the Judges said “the length of the delays in the applicant’s cases was considerable: for around two and half years they were simply left in local prisons where there were few if any offending behaviour programmes.  The consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired. Further once the applicant’s tariffs had expired, their detention was justified solely on the grounds of the risk they posed to the public and the need for access to rehabilative treatment at that stage became all the more pressing”.

As a result of the decision of the Court, the men bringing these cases have been awarded damages with a combined total of £14,000 and £30,000 in legal costs.  Therefore this ruling may expose the Government to thousands of compensation claims for those still part of the prison population but in the same situation as these three men. 

In response to the European Court’s ruling Justice Secretary Chris Grayling has told MPs “I am very disappointed by the decision”, and indicated that it is the Government’s intention to appeal the Court’s decision.      

The director of the Prison Reform Trust, Juliet Lyon has recommended that the Justice Secretary should now review the cases of those remaining in prison beyond their tariff dates, which is believed to amount to approximately 3,500 cases.  It is obviously of considerable concern to the government that the latest European Court ruling could lead to a 'flood' of litigation against the government from prisoners who find themselves in the same position as James, Wells and Lee, however the ruling passed by the European Court has no immediate effect as it has been stayed for three months pending the governments appeal. 

On the 1st May 2012 the government passed on to the statute book a law which will effectively abolish IPPs but at present the law has not yet been enacted, therefore IPPs technically remain in force.  However it seems unlikely that Judges will continue to impose these sentences in anything other than the most serious  cases and the end is in sight for the IPP.