Indeterminate sentences and Baby P

Fresh and yet more noxious light has been cast on the working of the indefensible régime of IPPs (indeterminate sentences for public protection) by the sentences passed in May on the three people convicted of indirect responsibility for the death of ‘Baby P’, as the victim of their brutal ill-treatment or neglect was originally called at their trial. The full names of the three offenders, and of Baby P, have now been released, and I have accordingly added them to the Times report of their sentences :

[Tracey Connelly, 28] the mother of Baby P [Peter Connelly], was given a minimum tariff of five years, her boyfriend [Steven Barker, 33] ten years and [Jason Owen, 37, Barker’s brother] three years. ... Peter’s mother was described by the judge as manipulative, self-centred and calculating as he imposed the unlimited sentence. He told her that she would be released only when the parole board deemed she was no longer a risk to the public and in particular to children. She will be able to apply for parole in just over three years because of time already spent in custody. [Steven Barker], her former boyfriend, was given life imprisonment after he was found guilty of raping a two-year-old girl and a concurrent sentence of 12 years for causing or allowing the death of Baby P.
[The Times, May 22, 2009]

None of the three was convicted of murder, since it was impossible to establish which of them had actually killed the baby. So they were charged and convicted of the lesser offence of “causing or allowing” the baby’s death. The crime has aroused intense public anger, fuelled by extensive media coverage. This anger has been intensified by the apparent leniency of the sentences (the life sentence on Barker was for a different offence), with the press speculating that all three might be released within a relatively short time. Yet the judge’s warning to Tracey Connelly, the baby’s mother, that “she would be released only when the parole board deemed she was no longer a risk to the public and in particular to children” has caused some predictable misunderstanding. The Times home affairs correspondent provided a useful if complex explanation :

Analysis : Baby P sentences mean Parole Board is in control
Richard Ford, Home Correspondent
The indefinite sentence given to Baby P’s mother means that she will remain in prison until the Parole Board decides she is no longer a risk to the public. She was given an indeterminate sentence for public protection, which in effect means a person can remain in prison indefinitely.

The sentence, introduced by David Blunkett, lays down a minimum term which must be served before the Parole Board assesses whether an offender can be released. Baby P’s mother will serve a minimum of five years before the Parole Board looks at her case. If the board refuses to release her, she will remain in prison with reviews on whether she can be freed taking place every two years. Anyone who is released from an indeterminate sentence for public protection is put under supervision by the probation service for a further ten years. At the end of that period they can apply to the board for the supervision to be lifted. The maximum sentence Baby P’s mother could have received on the charge of causing or allowing her son’s death was 14 years. But if the judge had given her a conventional sentence of this nature she would have been automatically released after seven years and kept under supervision for the remaining seven years.
By giving her an indefinite sentence, the judge appears to have decided that, rather than risk the option of Baby P’s mother being automatically released after seven years, the better option is to hand down a sentence that could mean her serving much longer in prison plus, on her release, a long period under supervision. It also means that rather than automatic release, she will be freed only if the Parole Board considers that she is no longer a risk.
[The Times, May 23, 2009]

In earlier posts (here and especially here, see the numerous comments appended to the latter) I have argued that an IPP, if it involves keeping a prisoner locked up after he has served his ‘tariff’ (the minimum time set by the judge to satisfy the requirements of retribution, rehabilitation and deterrence), can be justified, if at all, only as preventive detention : it can’t be regarded as punishment, for the tariff was supposed to define the length of time for that, so its sole purpose is to protect society from any possibility of the prisoner re-offending, whenever a parole board can’t be convinced that re-offending is unlikely. Given the impossibility of predicting anyone’s future behaviour, even by the great and the good who presumably sit on parole boards, the virtual certainty of abuse, misjudgement and injustice in the system is obvious. It’s compounded by the fact that the onus for persuading the parole board that the prisoner won’t re-offend effectively rests on the prisoner, contrary to the most elementary principles of justice.

Now, if the analysis of the sentences in The Times quoted earlier is correct, we find the IPP giving rise to yet another anomaly. The judge appears to have refrained from passing ‘ordinary’ (non-IPP) sentences of up to a maximum of 14 years because under quaint current practice the two persons affected would have been released after only a half of the time prescribed, i.e. after a maximum of 7 years. The judge evidently thought this unduly short, either because of the gravity of the crime or because of the likelihood of a public and media outcry at the prospect of such ‘monsters’ being set free so early. So he resorted to IPPs, representing indefinite sentences with the possibility that the offenders would never be released - and at the same time set relatively short tariffs, presumably to justify not having passed longer non-IPP sentences. The consequence of this looks as if the tariffs set no longer represent the judge’s view of the minimum time in prison required for retribution (i.e. ‘punishment’), rehabilitation and deterrence. The post-tariff IPP appears to have been used for continued punishment (to avoid automatic release after half the sentence passed) and not purely to protect society from the risk of fre-offending. This seems questionable, if as seems likely the IPPs have been misused for extra punishment after the tariffs, the tariffs have not been set to reflect the gravity of the crimes, and the IPPs have been used to evade the practice of releasing prisoners after they have served half of their (non-IPP) sentences.

Finally, as another nail has been hammered into the coffin of the case for the IPP by a lethal comment posted here by a distinguished Australian lawyer, a former Deputy President of the Australian Law Reform Commission, I am reproducing it below :

 From John Greenwell

August 11th, 2009 at 6:36 am

An Australian lawyer comments : I hope the Petition seeking justice for the 971 ‘less-than-two years tariff’ prisoners, is successful. In addition, I hope there will be a fundamental re-think of the IPP scheme - a bad law, unjustly administered - sooner, rather than later.

You may be interested in the Australian approach. We have of course the same common law tradition but, in the field of criminal punishments, we have diverged on basic principle. This difference is reflected in the 2003 UK Legislation introducing the IPP scheme.

I can best explain this by quoting from the Australian High Court judgements in the case which authoritatively stated the Australian position - Veen (1988.). The Court specifically drew a distinction from English law, as judicially expressed at that time :

“The principle of proportionality is now firmly established in this country ... a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from risk of recidivism on the part of the offender ... There is no occasion now to contemplate the adoption by judicial decision of the English development.”

The English development (my italics) was one which “permitted a sentence greater than the principle of proportionality would allow” on the ground that a “longer sentence is required for the protection of the community.”

The High Court judgement continued :

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society ; it is another thing to say that the protection of society is not a material factor in fixing the appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other matters, which is permissible.”

The distinction between what is impermissible and what is permissible is at the heart of an illuminating controversy between C.S Lewis and (others) which appeared over a number of issues in a law journal and concluded with a plea by Lewis that ‘deserts’ must be the first consideration of punishment. To this the High Court said :

“The plea has been heard by the courts of this country, by adopting the principle of proportionality ...It must be acknowledged however that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to the protection of society in determining the sentence, calls for judgement of experience and discernment.”

The principle of proportionality is reflected in the parole system in Australia. Thus, the Head sentence will be fixed in accordance with that principle, but a minimum term is fixed to enable rehabilitation and reform of the offender. These though cannot extend the fixed term or allow for it to become indeterminate. There is nothing like the UK Indeterminate Protection Programme which, as I understand it, provides (in the case of sexual and violent offenders) that if, at the expiration of the tariff, the Court or Parole Board is not satisfied that the offender’s release can be made without danger to society, he or she will be indefinitely detained until they are so satisfied. IPP does not purport to be some irregularly imposed punishment for incorrigible offenders. It is a regular part of the criminal punishment system involving, as I understand it, thousands of inmates whose offences must vary in gravity. It is thus a kind of sub-system of preventative detention for crimes of violence.

Australia does have specific provision for indefinite detention of a limited class of sexual offender. Thus, to take the example of one Act, ‘indefinite detention’ is allowed following a court order for (a) a ‘serious sexual offence’ ; (b) A ‘serious sexual offence’ is an offence of a sexual nature involving violence or against a child ; (c) the court must find, on application by the Attorney General, that such an offender represents a ‘serious danger’ to the community ; (d) that it involves satisfaction that “there is an unacceptable risk that if released, the offender would commit ‘a serious sexual offence’.

It is unnecessary to labour the differences between this and the English legislation. It is confined to a serious sexual offender who is known, from repeated sexual behaviour, following prior convictions, that he will or is likely to re-offend. In Victoria, for example, its application is confined to 3 or 4 male offenders, housed (under security) outside the prison at Ararat. The rationale for indefinite detention in these circumstances is that it is non-punitive and, although not identical, is rather to be aligned to the involuntary detention of inmates in mental hospitals.

I cannot imagine the English scheme, or anything like it, being adopted in this country.

IPPs are an aberration and a denial of justice, and we should rid ourselves of them without delay. The Australian jurists’ case against them seems unanswerable.