By Dean Pulling
The Criminal Justice Act 2003, along with many other concepts, swept in a plethora of new sentencing provisions. Amongst the most controversial are those relating to offenders sentenced to indeterminate prison sentences, either life or those sentenced to imprisonment for public protection (IPP).
This article concentrates on those indeterminate sentences, the role of the Parole Board, the obligations of the Secretary of State and the effect of the important recent judicial rulings in
R v. Walker (David) v. Secretary of State for Justice; R. v. James (Brett) v. Secretary of State for Justice [2008] EWCA Civ 30; The Times, February 6, 2008, which upheld (in part) the decision of the Divisional Court in R. (Wells) v. Parole Board; R. v. Walker v. Secretary of State for Justice [2008] 1 All E. R. 138 and reversed (in part) the decision of the High Court in R. (James) v. Secretary of State for Justice [2007] L.S.Gazette, September 6th 2007, QBD.
The Act also articulates the purpose of sentencing (s.142 (1)) and provisions relating to the Parole Board (s. 239 (3)). The Secretary of State has also issued Rules to the Parole Board and a policy for the treatment of short tariff lifers (PSO 4700).
The practical effect of such a determination is that the judge fixes the tariff (the minimum term) that a defendant must serve before his case can be considered by the Parole Board who must then be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. In assessing the risk presented by an offender one significant factor is whether the prisoner has availed himself of opportunities to undertake offending behaviour programmes, which normally include the Sexual Offenders Programme (and variations thereof), Enhanced Thinking Skills Course and CALM (an anger management programme) and various drug and alcohol awareness programmes.
The benefits of these courses are of course manifold, the main one being that without them, prisoners would be unable to demonstrate to the Parole Board that the risk they presented at the time of sentence was imposed has diminished and that they have ceased to be dangerous. The responsibility for this lies largely in the hands of the Secretary for State.
There have been recent challenges as to whether the Secretary of State has acted unlawfully by failing to provide for measures to allow prisoners serving indeterminate sentences to demonstrate to the Parole Board at the time the time their minimum term has expired that they need no longer be imprisoned for public protection.
On 1st February 2008, the Court of Appeal (Civil Division) in Walker and others upheld a decision of the Queen’s Bench Division of the High Court of July 2007 that the Secretary of State had acted unlawfully by failing to make such provision and that the failure involved a breach of his public law duty.
However, breach of that duty did not by itself render continued detention unlawful (the Divisional Court held that it did) and that the court has to consider Section 28 Crime (Sentences) Act 1997.
The Court of Appeal went on to consider the interaction with the objectives of Article 5 of the European Convention on Human Rights, finding that so long as a prisoner is considered dangerous, his detention will be justified under Article 5(1)(a) but if a lengthy period elapses without a review, a stage may be reached where detention has become arbitrary can no longer be justified.
The cases brought revealed a paucity of courses and facilities being offered to short tariff prisoners. Both the Divisional Court and the Court of Appeal agreed that denying prisoners the opportunity to undertake the courses designed to reduce the risk they would otherwise present to the public is well documented and described by Woolf LCJ (as he then was) as an “unhappy state of affairs” and a “systemic failure on the part of Secretary of State”.
As the prison population continues to increase and the number of offenders sentenced to indeterminate prison sentences has been beyond what the Government ever envisaged the unavoidable questions must be asked, “how can this objective be achieved?” how can prisoners “better themselves” without the opportunity? Moreover, is the public being better protected?
