My Lords, in over half a century in the law, inevitably one comes across a number of injustices in individual cases of one sort or another. However, I think I can fairly say that I have never come across an injustice as plain and persistent as this on an institutionalised basis, because that is what this is, and it grows worse with every passing year.
In order to understand how truly shocking it is, it is necessary to understand three basic matters. First, preventive detention, which IPPs essentially amount to—incarcerating people on an indefinite basis, not as
punishment for what they have done but to guard against the risk that they may cause harm if they are set at liberty—is basically inimical to our sense of fairness. It is true that we accept that discretionary life sentences can be passed in the cases of the most serious and dangerous offenders, but that is really a very far cry from IPPs, with which we are concerned here, which extended to no fewer than 153 specified different crimes. They were, of course, as has been explained, abolished in 2012 once the basic unfairnesses finally came to be recognised.
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The second point is that the seven-year life of IPP sentencing fell into two distinct phases: phase 1—April 2005 when it began until July 2008 when the scheme was amended, so that was just over three years—and phase 2, from the amendment in July 2008 until abolition four years later in 2012. The noble and learned Lord, Lord Lloyd of Berwick, explained the two most critical differences between those phases. First, in phase 1, the tariff term—half of what the determinate sentence would have been, representing the appropriate punishment for the crime—could have been as little as a month, as we have seen from the figures, and was frequently only a very few months, whereas in phase 2 an IPP sentence could only be passed if the tariff term exceeded two years. The second difference was that in phase 2, an IPP sentence was made discretionary, whereas in phase 1 the judge had generally been required to assume dangerousness, so he had no discretion on the matter; he had been bound by statute to pass an indeterminate sentence.
The third matter is that those sentenced even during phase 2, once they served their tariff term, could possibly be said to have had a real grievance because even they were worse off than those who committed equivalent offences after the abolition of the scheme in 2012. Anybody subsequently offending as they had done could not have been sentenced to an indefinite term as they were.
This amendment is not in any way directed to them, but instead addresses an altogether more flagrant injustice. It concerns only those who were sentenced in phase 1 and only those with tariff terms of less than 24 months—650 prisoners, as the noble and learned Lord, Lord Lloyd, has explained—who are infinitely worse off than any of the others, and particularly worse off than those sentenced in phase 2. They are worse off in three particular ways: first, because their tariff terms were less than 24 months, as explained, which could not have applied to phase 2 detainees; secondly, because in their case, the court had had no discretion in the matter, but had been required to assume that they were dangerous and to pass the sentence; thirdly, because by definition their sentence was imposed now more than six years ago, so that they would already would have served two years longer than any determinate sentence would have been, subject, perhaps, in a rare case to an extended sentence. In the great majority of cases, however, they will have been serving years longer even than that.
As I put it in Committee in July, this amendment would cut the Gordian knot with regard to this most unfairly treated cohort of IPP prisoners, and would
bypass the Secretary of State’s surprising and regrettable refusal to exercise his Section 128 power to adjust the test for the Parole Board to apply. The amendment would at least ensure that this cohort, at long last, would be set free. Of course, some of them may in future commit further offences—of course that is possible. That, however, is the price we pay generally for not allowing preventive detention, and it is the price that we must pay for ending this ever lengthening regime which is now, in their case, one of purely preventive detention. At long last, it would remove this unpleasant stain from our criminal justice system. I join with the noble and learned Lord, Lord Lloyd, in urging the House to pass this amendment and end this major injustice in our law.