Reducing Risk: Integration or Aversion Risk assessment, management and the use of IPP in England and Wales.

1. 'Reducing Risk: Integration or Aversion? Risk assessment, management and the use of IPP in England and Wales'.  Hazel Kemshall Professor of Community and Criminal Justice, De Montfort University Hazel Kemshall SASO Conference Nov 2010

2. Current Position 6,130 IPP prisoners in England and Wales (MoJ figures) Of these some 2,850 have passed their tariff date Only 99 had been released by June 2010, with approx 24 recalled Each prisoner costs £40,000 per year 2,120 had not finished one programme as of July 2010 November sees a review of IPP sentencing Hazel Kemshall SASO Conference Nov 2010 Back ground if required: From recent inspection report. The Criminal Justice Act 2003 created a new sentence of IPP for adults and a parallel sentence of DPP for children and young people under-18. These new sentences were similar to a life sentence of imprisonment in that: ! the court set the minimum term . the .tariff. - which had to be served before the release date could be determined by the Parole Board ! offenders were not released until they had satisfied the Parole Board that they could be safely managed in the community ! after release, offenders were subject to a life licence and could not apply for it to be suspended for at least ten years. 2.2. The sentence was available for any one of 95 serious violent or sexual offences (ranging from manslaughter to indecent assault) that carried, but did not always attract, a maximum sentence of ten years or more. In addition, until July 2008, if an offender had previously committed one of the 95 serious violent or sexual offences, or any offence from a further list of 58 (which included, for example, affray or criminal damage), the court had to make a presumption of dangerousness, that is, that the offender posed a significant Risk of Serious Harm (RoSH) to the public. The court was then required to impose an IPP, unless presented with information about the offence or the offender, which made an indeterminate sentence unreasonable. 2.3. The combined effect of the wide range of specified offences and the presumption of dangerousness ensured a rapid increase in the use of Indeterminate Sentences for Public Protection 13 indeterminate sentences, giving rise to widespread concerns*. By July 2007, the number of sentences passed had exceeded NOMS. estimates for IPPs by some 600. Some offenders were sentenced to IPPs with short tariffs, one as low as 28 days. Although most would have received a custodial sentence of some kind before the introduction of the IPP, the increase put considerable pressure on prison resources as IPP prisoners. rate of release was much slower than that of prisoners serving a determinate sentence. The government acted to address some of these concerns. The Criminal Justice and Immigration Act 2008 removed the presumption of dangerousness and allowed courts greater discretion in the use of IPPs. It also introduced a minimum tariff for IPPs, normally two years of actual custodial time. 2.5. Following the implementation of the Criminal Justice and Immigration Act 2008, in July 2008, the rate of new IPP sentences being passed fell by about a half. In the six months up to July 2008, 850 IPP sentences were made, averaging 141 per month, whereas the number for the next six months halved to 420, an average of 70 per month. The numbers held in prison, however, continued to rise at an annual rate of 20%, because of the continuing slow rate of release.Back ground if required: From recent inspection report. The Criminal Justice Act 2003 created a new sentence of IPP for adults and a parallel sentence of DPP for children and young people under-18. These new sentences were similar to a life sentence of imprisonment in that: ! the court set the minimum term . the .tariff. - which had to be served before the release date could be determined by the Parole Board ! offenders were not released until they had satisfied the Parole Board that they could be safely managed in the community ! after release, offenders were subject to a life licence and could not apply for it to be suspended for at least ten years. 2.2. The sentence was available for any one of 95 serious violent or sexual offences (ranging from manslaughter to indecent assault) that carried, but did not always attract, a maximum sentence of ten years or more. In addition, until July 2008, if an offender had previously committed one of the 95 serious violent or sexual offences, or any offence from a further list of 58 (which included, for example, affray or criminal damage), the court had to make a presumption of dangerousness, that is, that the offender posed a significant Risk of Serious Harm (RoSH) to the public. The court was then required to impose an IPP, unless presented with information about the offence or the offender, which made an indeterminate sentence unreasonable. 2.3. The combined effect of the wide range of specified offences and the presumption of dangerousness ensured a rapid increase in the use of Indeterminate Sentences for Public Protection 13 indeterminate sentences, giving rise to widespread concerns*. By July 2007, the number of sentences passed had exceeded NOMS. estimates for IPPs by some 600. Some offenders were sentenced to IPPs with short tariffs, one as low as 28 days. Although most would have received a custodial sentence of some kind before the introduction of the IPP, the increase put considerable pressure on prison resources as IPP prisoners. rate of release was much slower than that of prisoners serving a determinate sentence. The government acted to address some of these concerns. The Criminal Justice and Immigration Act 2008 removed the presumption of dangerousness and allowed courts greater discretion in the use of IPPs. It also introduced a minimum tariff for IPPs, normally two years of actual custodial time. 2.5. Following the implementation of the Criminal Justice and Immigration Act 2008, in July 2008, the rate of new IPP sentences being passed fell by about a half. In the six months up to July 2008, 850 IPP sentences were made, averaging 141 per month, whereas the number for the next six months halved to 420, an average of 70 per month. The numbers held in prison, however, continued to rise at an annual rate of 20%, because of the continuing slow rate of release.

3. Growing Controversy Prison Governors Association has called for end to IPPS and the end to the ‘bureaucratic limbo’ of such prisoners IPPs are ‘unfair and inhumane’ Parole board has become ‘risk averse’ post high profile SFOs Prison Reform Trust report June 2010 Ken Clarke’s ‘rehabilitation revolution’ and challenge to the ‘bang em up’ culture Too high a proportion for lower risk offences-proportionality and seriousness not adhered to Projection: 12,000 IPPs by 2012 Hazel Kemshall SASO Conference Nov 2010 Approx one third IPPs are for robbery HMI prob and HMI prisons report 2010.Approx one third IPPs are for robbery HMI prob and HMI prisons report 2010.

4. Recent Research Jessica Jacobson and Mike Hough for the Prison Reform Trust, 2010 Key points: lack of offending behaviour programmes, limited parole board capacity, risk aversion, lack of rehabilitative opportunities in prison, cannot ‘prove’ safe to release HMIProb and HMIPris March 2010: “Given that the present position is unsustainable, a major policy review should be conducted at Ministerial level, analysing the costs and benefits of these sentences”. Hazel Kemshall SASO Conference Nov 2010

5. Impact on Prisoners ‘Kafka-esque limbo’ Hopelessness, nothing to lose, fatalism Fractured contact with families, especially for young male prisoners Frustration, lack of incentive, no future goals Long waiting times for group/treatment programmes (despite appeal court judgement) Hazel Kemshall SASO Conference Nov 2010

6. Impact on Practice and Key Agencies Volume against the under-resource Quality of Pre-sentence reports inadequate for IPP decision making Judges’ decision making Difficulties with key terms and risk thresholds Lack of prison programmes ‘Bottle necking’ in local prisons Poor quality sentence and risk management plans Hazel Kemshall SASO Conference Nov 2010

7. Aversion or Integration? The persuasive logic of the precautionary principle Politically risk averse (until the money runs out) The resurgence of rehabilitation ‘Holistic’, ‘balance’ and recent HMIP report GLM, integration, and community supervision Hazel Kemshall SASO Conference Nov 2010

8. Some Broader Considerations Precaution and aversion versus integration and rehabilitation Seizing the agenda in the age of austerity ‘Blended protection’- through enhanced community supervision, prevention, and creditable rehabilitative strategies Caution- beware the displacement of risk onto those least able to manage it! Hazel Kemshall SASO Conference Nov 2010

9. References Bennett, J. (2008) The social costs of dangerousness: prison and the dangerous classes, Centre for Crime and Justice Studies, King’s College London Hebenton, B. and Seddon, T. (2009) ‘From Dangerousness to Precaution: Managing sexual and violent offenders in an insecure and uncertain age’, British Journal of Criminology, 49, 343-362 Howard League for Penal Reform (2007) Indeterminate Sentences for Public Protection, Prison Information Bulletin 3, London: Howard League for Penal Reform HMI Probation and HMI Prisons (2010) Indeterminate Sentences for Public Protection: A joint inspection. London: HMI Probation and HMI Prisons. Jacobson, J. and Hough, M. (2010) Unjust Deserts: imprisonment for public protection. London: Prison Reform Trust. JUSTICE (2009) A New Parole System for England and Wales, London: JUSTICE. Kemshall, H. (2008) Understanding the Community Management of High Risk Offenders. Open University Press. Ministry of Justice (2009) Population in custody monthly tables: June 2009 England and Wales, Ministry of Justice Statistics Bulletin, http://www.justice.gov.uk/publications/docs/populationin-custody-06-2009.pdf Hazel Kemshall SASO Conference Nov 2010

10. References Continued Ministry of Justice (2010) Sentencing Statistics: England and Wales 2008, Ministry of Justice Statistics Bulletin http://www.justice.gov.uk/publications/docs/sentencing-stats-2008.pdf Parole Board (2009) Annual Report and Accounts: the Parole Board for England and Wales 2008/09, London: The Stationery Office Prison Reform Trust (2007) Indefinitely Maybe? How the indeterminate sentence for public protection is unjust and unsustainable. A Prison Reform Trust briefing, London: PRT Sentencing Guidelines Council (2008) Dangerous Offenders: Guide for Sentencers and Practitioners, Version 2, July 2008, http://www.sentencingguidelines.gov.uk/docs/Dangerous%20Offenders%20%E2%80%93%20Guide%20for%20Sentencers%20and%20Practitioners.pdf Hazel Kemshall SASO Conference Nov 2010