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Latest 17 May 2024

When public protection turns Kafkaesque

By Jess O’Thomson
Original images: Ye Jinghan / Unsplash, Franz Kafka

The government abolished Imprisonment for Public Protection sentences more than a decade ago, but thousands are still serving them. Is it ever right to punish people for crimes they might go on to commit?

Content warning: suicide.

Leighton Williams was only 19 in 2007, when he drunkenly attacked a man in a Caerphilly park and was sentenced to a minimum of two years in jail. But a previous conviction for grievous bodily harm was enough to convince the judge at his trial to hand down an indefinite prison sentence. After 16 years in prison, Williams wept last week as the Court of Appeal altered his sentence and ordered his immediate release.

Williams is one of thousands who have been jailed under an Imprisonment for Public Protection (IPP) sentence. Mark Conway received an IPP sentence for armed robbery in 2011, and was out of jail on licence when he helped stop a terrorist attack at London Bridge in 2019, in which two people were killed. After risking his life to tackle the terrorist, his first reaction was not to call his girlfriend to let her know he was safe, but his probation officer – he was terrified he would be recalled for assaulting the attacker. Another man released on licence under an IPP sentence, Matthew Price, emailed the justice secretary in 2023 about the mental harm his indefinite sentence was causing. Three weeks later, Price killed himself.

IPP sentences were introduced by David Blunkett in 2003, an initiative he recently described as his “biggest regret” from his time in government. These sentences meant that prisoners were locked up until they could prove to the Parole Board that they are no longer a danger to the public. Even after this, they could be recalled on licence. This licence is also indefinite, and cannot even be reviewed until at least 10 years have passed.

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Blunkett claimed he was trying to protect the public from serious offenders, but IPP sentences were given out widely, often for relatively minor offences, leading to widespread criticism. They were finally abolished in 2012, after the European Court of Human Rights found that they were “arbitrary and therefore unlawful”, in violation of human rights. But the government argued it was not “right or appropriate” to change sentences already imposed by the courts because of a change in policy, leaving IPP sentences that had already been imposed still in force.

In Williams’ case, the Court of Appeal said that his previous conviction for grievous bodily harm did not represent a “pattern” of dangerousness, and the judge had not considered his age at the time. The court substituted a sentence of five years, which Williams had already far exceeded, and so ordered his immediate release.

This decision does nothing for the thousands of people still imprisoned under IPP sentences or released on indefinite licenses, raising questions that go to the heart of our approach to criminal justice.

You might try to justify indefinite prison sentences because of public protection. But can protecting the public alone ever justify imprisoning someone indefinitely? The professor of criminal law and penal justice Nicola Padfield argues that the idea of locking up “dangerous” people might be “superficially attractive”, but indefinite detention in anything but the most exceptional circumstances ignores vital principles of fairness and proportionality which should guide criminal justice.

Or you could try to justify them through rehabilitation. But prison is a terrible place to help anyone, and the reality of IPP sentences means this falls apart. Prisoners are told they must work to reduce their “risk of harm” while they are in jail, but according to Padfield they “often feel powerless to do so, living within a difficult prison environment, and a creaking system”. The Prison Reform Trust cites one person serving an IPP sentence who couldn’t take a compulsory course needed to reduce their level of risk, because they were unable to read or write. If rehabilitation is practically impossible, then a sentence that continues until rehabilitation is complete becomes a Kafkaesque nightmare.

You could even try to justify IPP sentences because they represent people getting their “just desserts”. But these sentences punish people not for the actions they have actually done, but rather some nebulous potential future risk. While debates over crime and punishment continue, Padfield concludes, “we all agree that sentences should be proportionate”. IPP sentences fly in the face of that principle.

Serious crime needs a serious response. The government’s Victims and Prisoners Bill, currently in the House of Lords, proposes that offenders released on licence could apply for a review after three years instead of the current 10. But IPP sentences, and the thousands of prisoners still suffering their consequences, shine a light on the motivations that underlie our criminal justice system. It might seem an easy win to lock up baddies and throw away the key, but perhaps our current approach to crime is causing far more harm than good.