The general public perception is that sentencing in this country is soft. It is not always clear how that viewpoint is to be reconciled with the fact that the prison population has reached record levels. Part of the picture in the increasing prison population was the introduction in April 2005 of imprisonment for public protection [IPP] sentences. In the Legal Aid Sentencing and Punishment of Offenders Bill [LASPO], the government has proposed replacing the IPP sentence with an automatic life sentences for certain offenders, but for the time being the IPP remains.
So what is an IPP sentence? And what is the difference between an IPP and a life sentence? And what is an extended sentence? And who might be in line for those types of sentences?
An extended sentence is not so very different from an ordinary ‘determinate’ sentence, where the offender serves half of the sentence in custody and half on licence unless he is recalled to prison. To be in line for an extended sentence an offender must be found to represent a significant risk of causing serious harm the public and have committed a ‘specified offence’ as defined by the Criminal Justice Act 2003. This will usually mean a relatively serious sexual or violent offence: perhaps a sexual assault or a bad case of an assault occasioning actual bodily harm. Offenders serving an extended sentence will be eligible for release after serving one-half of the sentence but the judge will determine how long extra the offender will remain on licence beyond the usual sentence. The offender can be recalled to prison at any time during the ordinary or extended licence period. This means that if the probation service believes that the offender has breached the terms of his or her licence (e.g. to live at a certain place, or not to contact a certain person) he or she can be returned to prison. Licencees do not have to have committed any further crime to be recalled and once recalled are at the mercy of the Parole Board in trying to secure re-release.
An IPP sentence is more resembling of a life sentence, which most people are broadly familiar with. In murder cases a life sentence is mandatory but life sentences can also be passed for other offences if they are serious enough and if the offender represents a continuing danger to the public as defined by various sentencing authorities. A person can be sentenced to IPP as a lesser alternative if the judge considers that he or she represents a significant risk of serious harm and has committed what is known as a ‘serious specified offence’ as defined by the Criminal Justice Act 2003. The type of offences that are categorised as serious specified offences are usually very serious offences of a violent or sexual nature: for example causing grievous bodily harm with intent, or rape.
The difference between a life sentence and an IPP sentence is that in IPP cases the tariff tends to be shorter because life sentences are reserved for the very worst crimes, which generally might be expected to attract longer tariffs. Beyond that the only difference between the two sentences is that a person sentenced to IPP can apply to have his licence cancelled ten years after his release whereas a lifer cannot. In both cases the offender is otherwise subject to licence for life after his or her release.
Those sentenced to IPP or life will be given a ‘tariff’ by the judge. This means the minimum time he or she must serve before being considered for release by the Parole Board. The judge decides the tariff by calculating what sentence he would otherwise have given the offender and halving it. To qualify for an IPP sentence the judge must have in mind a ‘starting point’ of four years (i.e., a tariff of two years or more.) In the case of lifers there is no minimum tariff although it would be extremely rare if not unheard of for a tariff of as short as two years to be considered in a lifer case. The figure is halved to promote consistency with the fact that ordinary determinate sentence prisoners will serve one-half of the sentence in custody. This halving of the otherwise appropriate term often gives rise to scaremongering headlines such as ‘out in only two years’ when the reality is quite different.
The reality is that the vast majority of IPP prisoners and lifers will still be in prison long after the tariff period has expired either because they are waiting to complete behavioural programmes, or because they have misbehaved in prison, or because they are simply unable to persuade the Parole Board that they have changed. Even if offenders are able to secure their release, they can be returned to prison at a moment’s notice if they reoffend or breach the conditions of their licence. And, unlike in the case of an ordinary determinate or extended sentence prisoner, those serving IPP or life will usually have this prospect hanging over them indefinitely. A single ‘mistake’ can result in the offender serving many years more than the tariff imposed on them and the Parole Board is not obliged to have any regard to the length of the tariff at that stage. Unless the Parole Board is satisfied that the risk that the offender poses to ‘life and limb’ is less than minimal, then the IPP or life-sentenced prisoner is liable to be detained without limitation of time: hardly the mark of the ‘soft’ system in which we are said to operate.
Matthew Stanbury is a barrister at Garden Court North Chambers. He practices in human rights, public law, prison law and crime.