The Victims and Prisoners Bill has now been approved by both Houses of Parliament and will become law.
Speaking in the House of Lords on Tuesday 21 May 2024, Lord Moylan said that “I do not think it is at all an exaggeration to say that more has been achieved, both operationally and legally, for IPP prisoners in the past few months than in the preceding 12 years.”
So, what has exactly been achieved?
The main focus is on speeding up and easing the process of IPP licence termination. Once a licence is terminated, a person can no longer be recalled. Over half the people in IPP sentences in prison now have been recalled, so amendments to the termination process could have a significant impact.
The changes to the termination process will only affect people who have been released at some point by the Parole Board: the only offering in the Bill for the 1180 people serving indeterminate sentences of imprisonment or detention who have NEVER been released is a new requirement to report the progress of the IPP action plan to Parliament each year.
One other important aspect of the Bill for IPPs is the introduction of a new power of executive release, which means that the Secretary of State will have a discretion to release a recalled prisoner. Until now, unless a recall was rescinded, which is very rare, then the only way back out was via the Parole Board. Once the Bill comes into force, there will be two routes to re-release – via the Secretary of State and the Parole Board.
The rest of this blog focusses on the termination process, which will change as follows.
The qualifying period for termination review by the Parole Board
The length of time between a person being first released and when they have the chance for their IPP (or, if the person was convicted as a child, DPP) licence can be terminated by the Parole Board has been reduced.
At the moment, and until the new Bill comes into force, everyone has to wait ten years from the first date of release.
The new Bill reduces the qualifying period for Parole Board termination review:
- From 10 years to 3 years since FIRST RELEASE for IPPs
- From 10 years to 2 years since FIRST RELEASE for DPPs
The decision to distinguish those sentenced as adults and those convicted as children was made at the eleventh hour and recognises the particular needs that stem from being sentenced to an indeterminate sentence for acts committed as a child.
It also removes the automatic annual referral to the Parole Board after the qualifying period has expired. This means that people will only get one chance to be considered for termination by the Parole Board. Those who have already had a review by the Parole Board for termination will not get another.
It removes a referral for those in custody, although discretion to release without licence by Parole Board remains possible.
Sunset clause
The Bill also creates a provision that if the licence is not terminated at the direction of the Parole Board, it will be automatically terminated after a further two years, provided that the individual is continuously on licence during that time.
If a person is recalled within the two year period, ordinarily it will “reset the clock” and they will have to wait another two years until the licence expires under the sunset clause.
I say “ordinarily” because further recent changes to the Bill introduce a discretion for the Secretary of State to decide that, where a person who has been recalled within the two years, the period of recall will not count, if that is in the interests of justice. Lord Bellamy explained that, speaking in a “personal capacity” he considered that it might be in the interests of justice to exercise this discretion where, for example, the recall was “made rather close to the expiry of the licence term, when the effect might be to restart the two-year clock—or a recall made in circumstances where there had been an arrest but subsequently there were no charges, or nothing was done to pursue the matter that led to recall—might be instances where this kind of power could be useful.”
The impact of the changes in practice
This means that, at the point when the Bill comes into force:
- A person serving an IPP who was FIRST released five years or more ago AND has been in the community continuously for the last two years will automatically have their licence terminated. If they have not yet had a termination review but were released over three years ago, they will become entitled to a Parole Board review for termination of their licence.
- A person serving a DPP who was FIRST released four years or more ago AND has been in the community continuously for the last two years when the Bill comes into force will automatically have their licence terminated. If they have not yet had a termination review but were released over two years ago, they will become entitled to a Parole Board review for termination of their licence.
Changes to the test for termination by the Parole Board
The current legal test that the Parole Board applies is “whether it is necessary for the protection of the public for them to still be subject to licence conditions”
The new clause states that “the Parole Board must direct the Secretary of State to make an order that the licence is to cease to have effect, unless”… “the Parole Board is satisfied that it is necessary for the protection of the public that the licence should remain in force” in which case, “it must dismiss the reference.”
This has been characterised by the government as creating a clear statutory presumption that the starting point for the Parole Board is to terminate the licence. On 4 December 2023, Prisons Minister, Edward Argar said the new test sets out: “…a clear presumption for termination of the licence requiring the Parole Board to direct the Secretary of State to make an order that a licence is to cease to have an effect unless it is satisfied that it is necessary for public protection that that licence remains in force. We are clear throughout that public protection must remain a priority, but that change in presumption—a rebuttable presumption—will mean that when the Parole Board considers a licence termination for an offender who has already been found safe to be released, it will approach that with the presumption in favour of terminating.”
The Bill cannot come into force for two months after that at the earliest but, for some IPPs, a glimmer of hope looks likely to become a little brighter.
The challenge for the next government will be to do more to support those who are still stuck in the system.
For a good summary and take on these developments see PRT’s summary and analysis.