The Prisoners With No Release Date

In Franz Kafka’s ‘The Trial’, protagonist Josef K. is subjected to a bewildering journey through the criminal justice system. Neither the cause of his arrest, nor the judicial process are made clear to him. And so, he laments: “It's characteristic of this judicial system that a man is condemned not only when he's innocent but also in ignorance.” Ultimately, ‘Kafkaesque’ is a rather tired reference. It is more often used to describe bureaucratic drudgery, rather than injustice.

This brings us to ‘Imprisonment for Public Protection’ (IPP) sentences. Recently criticised by former UK Supreme Court Justice Lord Brown as “the greatest single stain on our criminal justice system”, they are shockingly evocative of Josef K.’s world.

IPP sentences were introduced under the Criminal Justice Act 2003. Tony Blair’s New Labour government had promised to be 'tough on crime, tough on the causes of crime', and envisaged that these sentences may be handed down to 900 dangerous violent and sexual offenders. In reality, they were also used to address lower-level crimes. Although only in force between April 2005 and December 2012, a total of 8,711 people received indeterminate IPP sentences.

This resulted in many offenders serving longer than the recommended tariff (the term judged appropriate for their actual wrongdoing). Kiya Smith, from Cardiff, was convicted of robbery in 2011. Aged just 17, he had stolen a mobile phone and was sentenced to IPP with a tariff of two years. He is still behind bars.

Smith has now spent nearly 10 years in prison, due to ‘Kafkaesque’ hurdles. Offending behaviour courses are often necessary for release, or are at least highly persuasive on the parole board. These are not available in every prison, or may be restricted due to lack of funding/staffing. As IPP was intended only for dangerous offenders who did not merit a life sentence, provisions were never made for such large numbers of prisoners. Furthermore, COVID-19 has stopped rehabilitative support, and created a backlog of parole hearings. Kiya Smith did, however, receive news in July 2020 - he was told not to expect release for at least another 18 months.

Of the 8,711 offenders sentenced, 1,895 still await release. Outside prison, their freedom will be meagre. IPP provides that prisoners are released on license indefinitely – and can only apply to end their sentence after 10 years. This means that they able to be recalled to prison.

As numbers serving original IPP sentences gradually decrease, recall is increasing (by 13% in the year ending September 2020). Here lies the biggest problem: indefinite sentencing leads to higher rates of mental health problems, self-harm and drug abuse. These continue after release (especially due to strict license conditions), and are often behind an offender’s return to prison.

In the High Court case of R (on the application of Grantham) v Parole Board for England and Wales (2019), the human cost of IPP sentences became patently clear. The appellant had been convicted of wounding with the intent to cause grievous bodily harm, with a tariff of three years. However, he served almost eight. After release, the appellant worked for his parents’ antique business, which he hoped to take over after their retirement. Yet his freedom was abruptly ended when he missed his curfew, and was recalled. For this misdeed, the appellant was imprisoned for an additional year and eight months.

The court’s decision concerned whether the parole board had rightfully denied release or transferal to open prison. Here emerged the ‘Kafkaesque’ injustice: without evidence, the appellant had been accused of harbouring ‘pro-criminal attitudes’ and abusing drugs. The parole board had also wrongly alleged that he had refused to engage with the rehabilitative team. Very little consideration had been given to the availability of work and the appellant’s good record with the family business. Accordingly, the parole board’s decision was quashed - yet many more remain behind bars. More than 400 of those still serving their original IPP sentence are at least ten years over their tariff.

The consequences are tragic and preventable. In November 2020, the Ministry of Justice paid damages to the family of Tommy Nichol, who had served two years over his four-year tariff. In 2015, Nichol committed suicide at HMP The Mount. He was said to be living with the “psychological torture of a person who is doing 99 years”. Self-harming is already prevalent in British prisons, but it is 70% higher among IPP offenders.

A recent report by the Prison Reform Trust concluded the following:

1. The abolition of the sentence should apply retrospectively. This is likely to require a process of judge-led reviews of individual cases.

2. There should be a phased programme of releases, with properly resourced preparation, and post release support for all those affected.

3. All IPP prisoners should have a fixed date on which their liability to recall ends

The need for reform is urgent – but it will never replace the years, and lives, lost to the prison system.