Report on Mandatory Sentences - Law Reform Commission

“These are unduly weak provisions to support the severely restrictive sentences that follow.
There is no hint of recognition of the well-known fallibility of judgments of dangerousness. There
is no requirement on courts to obtain relevant reports on the offender: a requirement to consult a
report if there is one is inadequate. Moreover, the presumption applies where there is just one
previous conviction of any of more than 150 specified offences, which vary considerably in their
seriousness. It is doubtful whether the presumption is compatible with Article 5 of the
Convention, insofar as it requires the courts to assume significant risk without investigating the
particular facts and reports, and (effectively) places the burden on the defence to negative
this.” 455
2.192 In 2008, the Chief Inspector of Prisons and the Chief Inspector of Probation conducted a review
of the IPP sentence. 456 They observed that section 225 and section 226 had given rise to a large number
of new and resource-intensive prisoners being fed into a prison system that was already under strain. 457
This, they noted, had not only “increased pressure, and reduced manoeuvrability, within the prison
system” but had also stretched the Probation Service. 458 The consequence of this was:
“...IPP prisoners languishing in local prisons for months and years, unable to access the
interventions they would need before the expiry of their often short tariff periods. A belated
decision to move them to training prisons, without any additional resources and sometimes to one
which did not offer relevant programmes, merely transferred the problem. By December 2007,
when there were 3,700 IPP prisoners, it was estimated that 13% were over tariff. As a
consequence, the Court of Appeal found that the Secretary of State had acted unlawfully, and
that there had been ‘systematic failure to put in place the resources necessary to implement the
scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function
as intended.” 459
This was by no means a new revelation. Similar comments had been made by the media in the years
preceding the publication of the report. 460
2.193 In 2008, section 225 was amended by section 13 of the Criminal Justice and Immigration Act
2008. The amendments provided that the courts would have a power, rather than a duty, to impose an
IPP sentence. They further provided that this power may only be exercised where either of two
conditions is met, namely, the immediate offence would attract a notional minimum term of at least two
years, or the offender had on a previous occasion been convicted of one of the offences listed in the new
Schedule 15A to the 2003 Act. 461 Section 14 made similar amendments to section 226.
2.194 In December 2010, the Government published a Green Paper on sentencing titled Breaking the
Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders. 462 This consultation paper
acknowledged that there remained a range of problems with the IPP sentencing regime. Among other
things, it observed that: (i) the regime had come to be applied on a much wider basis than had originally
been anticipated; (ii) the release rate was very low because offenders were required to satisfy the Parole
Board that they did not pose an unmanageable risk to the community and, in practice, this negative
455
456
457
458
459
460
461
462
Ashworth and Player “Criminal Justice Act 2003: The Sentencing Provisions” (2005) 68 Mod L Rev 822 at
835.
The Indeterminate Sentence for Public Protection - A Thematic Review (HM Chief Inspector of Prisons and
HM Chief Inspector of Probation, 2008).
Ibid at 3.
Ibid.
Ibid at 4.
See, for instance: “Sentence designed for ‘Public Protection” The Telegraph 20 August 2007.
Inserted by Schedule 5 to the Criminal Justice and Immigration Act 2008.
Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (Ministry of Justice,
2010).
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