My Lords, Amendments 208A to 208H relate to offenders serving sentences of imprisonment for public protection commonly known as IPPs. The noble Lord, Lord Pannick, who was very kind about my work as a Minister, invited me to put away the departmental brief. I am not going to do that, not least because it might mean that my work as a Minister here ends somewhat prematurely. But that is not inconsistent, I hope, with making it clear to the Committee that I have listened carefully to the debate and to the points raised around the Chamber. I will reread the debate in the Official Report as well.
Of course, I feel the mood of the Committee—that would be impossible to miss. The speeches have been powerful and sometimes heartfelt. Without wishing to ignore others, may I say the contributions from the
noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Woolf, about their personal part in the genesis of IPPs have been unusual and moving. This politician, may I say to the noble Baroness, Lady Chakrabarti—although I see myself still as a lawyer, not a politician—certainly is trying to get this right. I do not think this is an issue which admits of easy analysis. To use the words of the noble and learned Lord, Lord Judge, it is something of a puzzle, which requires looking at carefully and solving.
I am grateful to those noble Lords who have met with me and discussed the issue. I am sure we will have further discussions between now and Report. I should say that I read Matthew Parris’s column at the end of July as well.
I will go through the amendments and set out the Government’s position, then I will come back at the end to some more general points. Four of the amendments, Amendments 208A to 208C and 208E, the latter from my noble and learned friend Lord Garnier, would require the Government to conduct a review on matters such as sentence progression, resettlement and supervision of prisoners serving an IPP sentence, and to lay a report before both Houses of Parliament.
The Government recognise that work needs to be done in relation to this group of prisoners. I will set out the work that has been done so far. We have put together what I think has been a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences via this plan. A qualified psychologist leads a review of the case of every IPP prisoner who is not making the expected progress. Between July 2016 and September this year, which is about five years, just under 1,700—1,679—reviews were completed; 440 prisoners were subsequently released and a further 474 secured a progressive move to more open conditions.
My noble and learned friend Lord Garnier commented on the availability of courses for IPP prisoners to help them make that progress. It is right that during the pandemic there were fewer places on some group interventions. We asked offender managers to look at other sorts of interventions to draw evidence from them for the parole reports. However, we have now been able to ramp up the provision again. Not all IPP prisoners will require the same interventions, of course, but we try to make sure that each prisoner has a suitable pathway, as it is called, to a future safe and sustainable release. That is the focus of the programme. There is a range of interventions, including places on progression regimes, other accredited programmes and places in open prisons. Where a programme is not available for an offender, the prison offender manager would seek to have the prisoner transferred to a prison where the programme is available, subject to a risk assessment and available places. In the meantime, other work would be identified so that the prisoner could undertake that work.
We believe that the action plan is working. High numbers of IPP prisoners are being released each year and the proportion of positive Parole Board decisions remains high. I do not think anybody mentioned this, but let me put it on the record that the Justice Select
Committee in the other place has recently launched an inquiry into IPP sentences. Its stated aim is to examine
“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”
The Select Committee will scrutinise what the Government are doing. I have no doubt that it will provide recommendations, which the Government look forward to hearing. I therefore underline that we are doing work in this area. We do not believe that a separate government-led review is necessary at this time.
I turn to Amendment 208D from my noble friend Lord Moylan. Currently, an IPP offender may apply to the Parole Board to have their licence terminated once 10 years from their first release from custody has elapsed. To do that, the offender must give their permission to the Secretary of State to apply to the Parole Board for licence termination on their behalf. The first part of this amendment would therefore remove the legal requirement for the offender to give their permission. Instead, offenders would be automatically rereferred for consideration each year, were they unsuccessful. The second part would change the time period from 10 to five years.
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Even without this amendment, the Government expect a large number of applications for licence terminations over the coming years as more offenders become eligible to apply. We do not believe that this will be inhibited by the need for the offender to give permission.
Of course, there is no guarantee that referrals will be successful. The decision lies not with a Minister but with the independent Parole Board. We believe that offenders being managed under licence in the community is a vital part of longer-term rehabilitation and of public protection. The Parole Board will agree to terminate a licence only if an offender’s risk has reduced such that the board is satisfied that the licence and its conditions are no longer necessary for the protection of the public.
With the greatest of respect, I do not agree with the noble and learned Lord, Lord Brown, or the noble Baroness, Lady Burt, that the Parole Board is risk averse. We believe that the Parole Board is applying properly what we consider an appropriate and suitable test. However, we have concerns that, when its various parts are put together, the amendment could cause the Parole Board to consider many applications that have little to no chance of success.
I should also point out that IPP offenders, through their community offender manager, are already eligible to apply to have the supervisory elements of their community licence suspended, again at the decision of the independent Parole Board. They can apply for that after five continuous successful years on licence in the community. If supervision is suspended, they are no longer required to attend supervision sessions with the community offender manager, or to seek approval for where they are going to live or if they want to go abroad, as long as those decisions do not breach any victim-related conditions that remain active. We believe that living under a licence which is suspended is not onerous and allows offenders to lead very normal lives.
My noble friend Lord Moylan commented that offenders may be unaware of how and when their licence might be terminated. It is ultimately the offender’s responsibility to understand the conditions of their sentence and what they can do to end it, even when the active part of the licence has been suspended, but—and this is an important “but”—the probation service does and will continue to make every effort to contact those eligible to apply to have their licence terminated and to seek their permission to submit an application. Unsupervised offenders on licence can still contact the appropriate probation office to discuss any relevant matters, including to make arrangements for licence termination. The probation service will support that application when its assessment is that the licence is no longer needed for the protection of the public. For these reasons, we do not agree that the licence changes are necessary.
Amendment 208F is intended to reverse the burden of proof, in part, for the test applied by the Parole Board when considering whether certain IPP offenders are safe for release. This would apply to offenders who have served a prison sentence 10 years or more beyond the minimum term or longer than the maximum equivalent determinate sentence for the offence.
The current Parole Board release test is constructed so that the board must not give a direction for release—it is a negative test—unless it is satisfied that it is no longer necessary on the grounds of public protection for the prisoner to remain confined. The effect of this amendment for offenders within its scope would be that the burden of proof would be reversed, so that the Parole Board would have to direct release unless it is satisfied by evidence from the detaining authority that further detention is necessary for public protection.
Of course, I understand the reason behind that change in the burden of proof, but we do not believe that it would have a material impact, because the Parole Board would still have to undertake an assessment of risk of harm and reoffending to make a judgment on whether the risk could be managed effectively in the community. We believe that it is one of those cases in which the matter of where the burden of proof lies will not likely affect the underlying decision.
Amendment 208G relates to licence termination. It would automatically terminate the licence of any IPP offender who had been released for two years and was not recalled in that time, unless the Secretary of State applied to the Parole Board to extend the automatic termination point by up to one year. The key point is that the licence termination is automatic. The noble Lord, Lord Blunkett, said that recall provisions had been strengthened and made more draconian, and the noble and learned Lord, Lord Falconer of Thoroton, made a similar point about the ramping up of the recall provisions, but these were not changed after the IPP sentence was introduced or, indeed, after it was abolished; the provisions have remained the same.
I listened very carefully to the case of Ella, as we are calling her, which the noble Baroness, Lady Burt, spoke about. Of course, I obviously do not know the details of that particular case, but I can say that recall provisions for IPP offenders in fact have a higher threshold than determinate sentence recalls, as there
has to be a causal link between the original offending and the new behaviour to make it possible to recall the IPP offender. So, the threshold is actually higher for IPP recalls.
Secondly, we have to bear in mind that focusing only on criminality when an IPP offender is out on licence is not, I suggest, always the right way of looking at it. What may appear to some to be minor breaches of licence conditions can be, when viewed in the light of what might be called the index offence—or the original offence—evidence of escalating risk. It is risk that we are focused on here—risk to the public at large, which justifies a recall to protect the public. Therefore, it is not always the case that one is looking only at criminal acts when the IPP offender is on licence; we may also have to look at other behaviour that is related to the index offence and shows an escalation of risk.
The licence is an important tool by which the probation service manages the risk—it is all about risk —which an offender presents to the public. Without the prohibitions and requirements in the licence, the probation service would lack the power to manage and mitigate the offender’s risk. For example, if the offender starts drinking very heavily, and we know that the index offence—or offences—was also linked to very heavy drinking, that would be a sign of increased risk, although there may be no criminality in drinking heavily itself.
Offenders are already able to apply to the Parole Board to have their licence terminated once 10 years since their first release from custody have gone past. The Parole Board is then to determine whether it is safe for their licence to be terminated. We believe that terminating their licence automatically, without any consideration by the Parole Board, would present an unacceptable risk to the public, and for that reason we do not propose to accept that amendment as drafted.