ABSTRACT
Indeterminate sentences of imprisonment for public protection (IPPs) were introduced amidst controversy under the Criminal Justice Act 2003 (see specifi cally s 225 and chapter 5 of the 2003 Act on ‘dangerous offenders’); they were brought into force in April 2005 and then amended via the Criminal Justice and Immigration Act 2008.1 They may be imposed on offenders who have committed certain serious violent and sexual offences.2 In essence, an IPP is made up of two custodial elements; a determinate term of imprisonment (the tariff element) to refl ect the seriousness of the offence committed and an indeterminate element which ends at the point where it is considered no longer necessary for the protection of the public to detain the offender. As recently noted the statutory structure for IPPs provides for two purposes: commensurate punishment and public protection.3 IPPs may be premised on giving prisoners a fair chance of ceasing to be dangerous (and demonstrating that they have ceased to be dangerous); but that is not synonymous with the purpose of the legislation. In short, rehabilitation per se is not one of the purposes of IPPs. The 2003 Act quickly required amendment, with the 2008 Act creating a minimum tariff of two years to refl ect the punitive element of the sentence; this was intended to secure an enhanced seriousness threshold. The speed with which these amendments were introduced refl ected concern at the time that the use of these sentences was spiralling out of control, and contributing further to the growth of an already burgeoning prison system. Originally the government had predicted that only an additional 900 prison places would be required as a result of the new sentences; yet by October 2009 some 5,600 prisoners were serving IPPs, with 2,130 of them
post-tariff,4 and the government was estimating that there could be around 12,500 IPPs by 2014. This series of events is testament to the enthusiasm with which governments legislate after wise words from practitioners and academics urging not only a more cautious path, but also predicting the very problematic outcome which the government had then to address. Or as Lord Brown put it in the House of Lords case of James, Lee and Wells ‘The maxim, marry in haste, repent at leisure, can be equally well applied to criminal justice legislation, the consequences of ill-considered action in this fi eld being certainly no less disastrous’.5 But that is not the story of greatest relevance here. Two matters are of interest here. First, the argument that IPPs refl ect a convergence between the disposal of mentally disordered offenders, and the sentencing of ordered offenders. As will emerge below, the IPP looks in many ways like the hospital order combined with a restriction order under ss 37 and 41 of the MHA 1983. Both the new penal disposal and the existing health disposal envisage a period in detention where treatment in its broadest sense will be offered with a view to effecting change in the offender; both forms of ‘treatment’ are offered under coercion, and in the health setting, this treatment can be given compulsorily; release from prison and discharge from hospital are both subject to the offender or offender-patient being deemed to be no longer a suffi cient risk; and recall from the community can be effected where the offender or offender-patient’s behaviour causes suffi cient concern, provided in the latter that the offender-patient’s health meets the criteria for recall;6 the primary objective of the restriction order is protection of the public, as is the primary objective of the IPP, although the latter entails a prior punitive element. For IPPs ‘rehabilitating the offender’ as a specifi c purpose of sentencing, to which sentencers must have regard, was disapplied under s 142(2)(c) of the 2003 Act, together with all the other designated purposes of sentencing. Indeed, as the House of Lords observed, whilst the IPP legislation provided the government with the opportunity to introduce treatment courses, the provision of these to obviate risk was ‘not amongst the specifi c legislative objectives’ laid down in the 2003 Act.7 For the restriction order, it is the hospital order which makes provision for treatment, not the restriction element per se. So in some respects the IPP and the hospital order with restrictions are similar devices; whether an offender who has committed a serious offence receives one or the other will be determined by the courts on the basis of a set of overlapping criteria.
