No end in sight?

The number of prisoners in England and Wales serving indeterminate sentences doubled between 2006 and 2010. The total number now serving indeterminate and life sentences is over 12,000 '“ a figure higher than the remainder of Western Europe combined.

Of those serving an IPP or DPP (indeterminate sentence of imprisonment or detention for public protection) given a parole hearing, just seven or eight per cent were released each year over the last three years; while 15 per cent of those serving life sentences were paroled (no doubt reflecting the longer time such prisoners have to undertake risk-reduction work during the 'tariff' period or 'minimum term' of the sentence, and that more of those would have had at least one previous parole hearing).

Parole reviews are well known to be delayed beyond tariff expiry in many cases without any justification, solely because of failures by the authorities to properly fund and arrange the board in the face of such a dramatic increase in workload.

In this context, it is fundamental that all those working in the parole system, whether as prisoner's representatives, staff writing reports and making recommendations to the Parole Board or the decision makers themselves understand clearly the lawful test to apply for release when considering an IPP or DPP case in contrast to a 'lifer' case. In some cases either approach will result in the same conclusion, but in others it will be vital that the process starts from the correct standpoint to ensure a fair determination is made.

The essential point to be recognised is that section 28 of the Crime (Sentences) Act 1997 which governs the release of all indeterminate prisoners does not mean precisely the same test always applies.

In R (Bayliss) v Secretary of State for Justice and Parole Board [2008] EWHC 3127 (Admin), the correct test was in issue where the prisoner was serving an IPP for an offence of causing death by dangerous driving. It was submitted that the proper test for release is whether the prisoner poses a 'significant risk to members of the public of serious harm occasioned by the commission of further specified offences' mirroring the terms of section 225 of the CJA 2003. It was conceded by the secretary of state that this same test as for the imposition of the indeterminate sentence ought to be applied to the question of release, and section 28 read and given effect in this way. Therefore, the proper test for release in such a case is whether 'it is no longer necessary for the protection of the public against a significant risk of serious harm from the commission of further specified offences that the prisoner should be confined'. The Court of Appeal (Civil Division), while refusing leave to appeal to the claimant against the result on its facts, did not depart from the decision of the court below on this issue.

Despite the stance taken in Bayliss, the secretary of state has failed to publish guidance to the Parole Board or to give amended or further directions to ensure the correct and lawful test for release is understood and used by the assessors and report writers and by the panels of the board.

Unlawful gloss

The directions to the Parole Board issued pursuant to section 32 of the Criminal Justice Act 1991 by the SSJ in 2004 '“ and containing unlawful reference to the test considering whether the risk to life and limb is 'more than minimal' '“ remain uncorrected. The directions were held to place an unlawful gloss on the statute itself to the detriment of the prisoner (even a 'lifer') in R (Girling) v Secretary of State and Parole Board [2006] EWCA Civ 1779 and again this was accepted in Brooke and others v The Parole Board and The Lord Chancellor and Secretary of State for Justice [2008] EWCA Civ 29 as an example of a clear encroachment upon the judicial independence of the Parole Board. In this case, the Court of Appeal upheld the finding that the structure and operation of the Parole Board lacks the sufficient independence to satisfy the requirements of article 5 ECHR and accordingly amounts to a violation of the rights of applicants for parole.

Even leaving aside this unlawful gloss on the statutory test even for a 'lifer' prisoner (repeated most recently in Prison Service Order 6010 'Generic Parole Process' at paragraph 2.1.6, and Prison Service Instruction 22/2009 at paragraph 1.13) the fact remains that the authorities have failed to properly publish the appropriate reading of the test for release from an IPP and ensure uniform fairness. It is fundamental that such sentences are imposed to extend beyond retribution to preventative detention, making a predictive judgment as to future risk. Unlike a sentence of life imprisonment that must have been warranted by the seriousness of the original offence, the IPP prisoner should be detained after tariff expiry only if the board can be positively satisfied that there is a present significant risk of causing serious harm by the commission of specified offences. This is necessary in order to ensure a causal justification for future preventative detention and to satisfy article 5 of the ECHR.

On an issue as important as liberty, one might reasonably have expected there to be greater publication of the correct approach to be taken in cases of IPP parole determinations.