In 2012, the legislation concerned with indeterminate sentencing, or Imprisonment for Public Protection (IPP) in England was revoked. Despite this, there are still 1355 prisoners held under IPP sentences in English jails. Indeterminate prison sentences are those without a fixed duration. The prisoner isn’t given a set release date but instead must convince a parole board that they have been rehabilitated and are no longer a threat to society.
This issue has far-reaching consequences and is not without its critics.
Torturous and unfair sentencing
In 2020, the UN Special Rapporteur observed that “to be ‘lawful’ sanctions cannot be open-ended, indefinite or grossly excessive, but must be clearly defined, circumscribed and proportionate.”
The Centre for Crime and Justice Studies (CCJS) describes these sentences as being “tortuous and unfair” and “amounting to psychological torture”, and yet they still prevail. Russell Webster from the CCJS based his article A Death Row of Sorts (2023) on the remarks of a prisoner in a Scottish jail.
Bob Neill MP, Chair of the Justice Select Committee described these sentences as “irredeemably flawed”. And how the government should undertake a review via a resentencing exercise and suggested the government should accept the committee’s view as an amendment to the Victims and Prisoners Act 2024. The government declined this suggested amendment.
The Scottish prison system
Unlike England, this form of sentencing still prevails in Scottish prisons. Sentencing akin to the English IPP system in Scotland is known as an ‘Order for Lifelong Restrictions’ (OLR) and it still has statutory authority. As determined by the High Court in Scotland, prisoners are subject to risk management for the rest of their lives (Criminal Procedures (Scotland) Act 1995).
The indeterminate sentence is a life sentence in all but name.
Worse than this, the data compels further scrutiny, not because the sentences are in themselves flawed – communities and individuals deserve to be able to go about their lives, safe in the knowledge that prisoners are securely held – but because the system is unjust.
Majority serve long beyond tariffs set
The majority of prisoners serve long beyond the minimum amount of custodial time (or tariff) set by the sentencing judge. Recent UK-wide data reflects this injustice.
There are 1004 prisoners in Scottish prisons who are serving sentences of over ten years and this excludes those on OLR sentences. To give this some context, there are no more than 70 prisoners on home detention curfew, which may not include any subject to OLR sentencing.
The vast majority of prisoners serve sentences long beyond the minimum amount of custodial time (or tariff) set by the sentencing judge. 91% have served over three years more, 65% over five years and 31% more than eight years of extra prison time. In Northern Ireland, 233 prisoners are serving OLR sentences and only 17 have so far been released.
This is a grave cause of concern for the justice system.
The current prison population in Scotland
As of May 2024, there are 8251 prisoners in Scottish prisons and of those adult numbers, 7899 are men and 352 are women.
Whilst 72% of these inmates are serving sentences, there are nearly 2000 people held in prisons who have yet to be tried for their offence (23%) and a further 288 awaiting sentencing (3.4%).
Release from prison under licence
So, how do we move on from being locked up to being released under licence? The former ‘bail hostel’ has now acquired a less judgemental name in the form of ‘approved premises’. The first stage of the process of being released by licence rests with the decisions made by the Parole Board. This organisation employs a ‘statutory test’ and its decisions are now subject to the provisions of the Victims and Prisoners Act 2024.
Decisions made by the Parole Board concerning any release under licence can be referred by the Secretary of State to the High Court. A mere Parole Board decision is not sacrosanct and can be challenged.
Why is this an issue?
Commentators on prisoner numbers and the management of prisoners released into the community have observed that the system is inefficient, and the system suffers from frequent recalls to prison. For example, in September 2022, there were 1434 recalls to prison.
However, whilst the English judicial system may well have done away with IPP sentences, as codified in the most recent 2024 legislation, there is no evidence that prisoners held beyond their original tariff have benefitted from a review of their sentences. There is no evidence of early release of these prisoners.
The Scottish OLR system satisfies the need for certainty, both for the victims and the local communities.
Arguably, prisoners need justice too, the belief that one day they will have been given the skills to equip them to become normal members of society. Prisoners are held without hope because they have no expectation of release and are not being adequately prepared – as Russell Webster (2023) has alluded to in his article and as also highlighted by the UN Special Rapporteur.
Seemingly, without joined-up thinking, training, structured daily activities, safe accommodation and meaningful social interaction between the licensees and the Probation Service, recalls will continue. Despite the rhetoric, licence recalls without the structures to support former inmates prolong what one former prisoner described this sentencing regime as “simply being allowed to inflict even more despair”.
Prisons in Scotland and England are currently at 90% capacity. Setting up an agenda to address the joint issues of prisoner numbers and indeterminate sentences may be fraught with difficulties, but the problems will persist until criminal justice professionals sit around the table with a common purpose. From the judiciary to those who manage approved premises for prisoners released under licence, the rehabilitation of offenders – almost piecemeal at present – demands a coherent strategy.
For now, that seems unlikely.
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