Bad Law: Consequences & Recommendations
by Terry G.M. Smith, A8672AQ, HMP Highpoint, February 2020
As we enter a New Year of
a New Decade of 2020, it is incumbent upon us to look back
over the last decade and beyond to explore and examine the
most prevailing and momentous flaws to emerge from the
illustrious portals of the Houses of Parliament and,
indeed, the Criminal Justice System. For instance, our aim
is to identify, consider and drill-down into how these
contentious laws and "doctrines" come into existence and
what effect it has had upon the public weal.
There is little doubt that
the Crown Prosecution Service has had more than its fair
share of legal problems and headaches laid at its door.
But it must be emphasised, most of these have been of
their own making in their relentless push to maintain and
sustain high conviction rates in the courts. But, by far,
the most deplorable and disturbing examples over the last
decade and beyond are the twin towers in the judicial and
legislative world, the legal concepts of Joint Enterprise
and the Indeterminate Sentence for Public Protection,
otherwise known as IPP.
It is not fanciful to suggest that both Joint Enterprise
and the sentencing policy of IPP have become an untreated
boil on the face of the British criminal justice system
and in order to lance and disinfect that boil we have-to
travel back in time and consider another legal landmark
decision in the 12th century, where on the 15 June 1215,
rebel barons forced King John to meet them at Runnymede.
The barons did not trust the king, so he was not allowed
to leave Runnymede until his seal was attached to the
legal document in front of him, famously known as the
Magna Carta. We learn out of 63 Clauses given royal
assent; one clause stands out as key to the legal concept
of Joint Enterprise today. Inasmuch as Clause 39, states:
"No free man shall be seized or imprisoned or stripped of
his rights or possessions ... except by the lawful
judgement of his equals or by the law of the land ".
[emphasis added].
Fast forward to the
present day, and we learn from the eminent jurist,
Giovanni Di Stefano that the legal concept of Joint
Enterprise has not been formally endorsed or validated by
legislators at Parliament, where it is patently clear,
laws and "doctrines" of this significance and calibre are
compiled, checked and ratified. Di Stefano emphatically
posits that Joint Enterprise is no more than a judge-made
"doctrine" or "principle" that has been elevated to the
status of binding precedent over the centuries and sadly,
used to terrible effect on the populace, usually black and
mixed-race youths.
In fact for the record history tells us that Joint
Enterprise was initially designed and created by judges
over 300 years ago in the 171h century to deter those from
duelling over matters of pride and principle on the
luscious green commons of England and elsewhere, as the
so-called, well-to-do were losing their fathers, uncles
and sons in droves. Something had to be done to stop this
senseless slaughter of the blue-bloodied aristocracy. A
rudimentary form of Joint Enterprise was rapidly
introduced as there was no time to run it past the
parliamentarians so that the authorities were able to
arrest and prosecute the spectators to these events as
well as the participants.
Perhaps the best-known case of Joint Enterprise was that
of Derek Bentley where the "doctrine" was used to convict
and hang Bentley for the shooting of a police officer in
1952. Bentley did not pull the trigger but was convicted
on the disputed words: "Let him have it". The Court of
Appeal in 1998 quashed the conviction of Derek Bentley,
but it was 46, years too late to save his life. As Di
Stefano proclaims: "The quashing of the Derek Bentley
conviction in 1998 should have sent warning signals to the
judiciary on the dangers of joint enterprise".
More recently, in 2010, under the Joint Enterprise
"doctrine", 17 youths were convicted on various charges
relating to the murder of 15-year-old Sofyen Belamouadden
at Victoria Station in central London. You would think one
of the counsels defending the 17 youths would have
researched the "statutory criteria" of Joint Enterprise
before the trial and raised objections as to the
correctness of the law? But still, Joint Enterprise
trundled on and on and convicted all those that stood in
its way.
What is more, it is advanced, judges over time had
developed the common sense doctrinal set of beliefs into
what can only be described as feral law. This is plainly
observed by Tom Bingham the former Lord Chief Justice in
his book: "The Rule of Law" where he clearly · defines the
role of the judiciary and law: "The judges may not develop
the law to create new criminal offences or widening
existing offences to make punishable conduct of the type
hitherto not subject to punishment, for that would
infringe the fundamental principle that a person should
not be criminally punishable for an act which was not
criminal when it was done".
It is often argued that the legal concept of Joint
Enterprise took a "wrong turn" over 50 years ago where
anyone with the "foresight" that a person may be about to
commit a serious crime or murder were also guilty of the
offence as they were in a position to prevent the offence.
Hence they were, in legalese terms, de facto and de jure,
guilty by association.
There is an even more
shocking postscript to this legal exposition as despite
there being many challenges to the legality of Joint
Enterprise --- the most prominent being R ·-v- Jogee
(2016) UKSC 8 and R -v- Ruddock (2016) UKPC 7. It is
noted, there has been only one successful challenge and
that was when leading counsel in R -v- Nicholas Van
Hoogstraten (2002) convinced Lord Justice Rose that Joint
Enterprise was not a law passed by Parliament and his
sentence of manslaughter was quashed. Despite the
successful Appeal by Van Hooqstraten being the best-kept
secret in the legal world, the Joint Enterprise genie is
now well and truly out of the legal bottle, and the law
has a duty to resolve this grave matter once and for all.
In a similar vein to Joint Enterprise, the sentencing
policy of IPP has come in for massive opprobrium and
censure. Historically, we learn Imprisonment for Public
Protection. was introduced by Labour Justice Minister
David Blunkett, given royal assent in section 225 of the
Criminal Justice Act 2003 and became law on the 4 April
2005.
Right from the outset, there were grave problems with the
IPP sentencing policy in relation to the contemporary
Sentencing Guidelines when it posed a pivotal question to
the judiciary. The question was, would you --- the
sentencing judge --- having regard to all the facts of the
case, impose a life sentence on the index offence? If the
answer is in the negative, then you must impose a
determinate fixed sentence. As there is no point imposing
a life sentence by a different name and formula as it
fails the purpose of sentencing in section 142 of the
Criminal Justice Act 2003. And more importantly, section
153(2) of the same Act, requires any sentence imposed to
be the shortest, so why seek to by-pass a determinate
fixed sentence with a much more longer and punitive IPP
sentence?
Conversely, we learn the overall aim and purpose of the
new legislation was to give the judiciary sufficient power
and influence to lock-up serious and repeat offenders for
an indefinite period, whose crimes did not merit a life
sentence. Those sentenced to IPP, however, were set a
minimum tariff which represented the punitive and
deterrent part of the sentence. After IPP prisoners had
served their minimum tariff, they could apply to the
Parole Board for release. The central concern for the
Parole Board is to protect the public from "serious harm"
and providing the Parole Board are satisfied a prisoner is
no longer a risk to the public, the chances of release are
increased exponentially.
According to New Labour in 2003, they expected to imprison
no more than about 800 IPP offenders. Unfortunately,
though, the judiciary took to the new sentencing
provisions with great gusto --- like a new toy --- and
before they had time to take stock of the "serious harm"
they were doing to both the Criminal Justice System and
the community, the prison system had swelled by over 8,000
IPP prisoners where the punitive nature and content of the
sentence by far outweighed the rehabilitative promise it
was supposed to ensure.
With the benefit of hindsight, we learn the legislation of
IPP was seriously misconceived; in the sense, the penal
and rehabilitative infrastructure required to make the
legislation work was severely under-resourced and left
wanting. Whereby offenders were unable to enrol upon the
appropriate Offender Behaviour Courses as there were not
enough places on the courses to cater for the massive
influx of prisoners. As a direct consequence, these
dictated offenders were unable to complete their Sentence
Plan as set by the Offender Management Unit (OMU),
Probation and Psychology departments.
Can you imagine the inherent hopelessness and helplessness
that occurred amongst the IPP demographic who had a
maximum tariff of 999-months or 83.25 years? Can you
imagine those IPP offenders with chronic mental health
problems, ADHD, Asperger's Syndrome, Trigeminal Neuralgia
and sometimes a combination of those who wanted to numb
the manifold uncertainties of the sentence with powerful
psycho-active drugs? Can you imagine those who were
illiterate and were the focus of intense bullying and
violence on a daily basis? Small wonder, 124 IPP prisoners
died in prison. Many as a direct result of "self-harm" and
suicide and some by natural causes. The latest official
figures state between 2017-2018 alone, the Prison and
Probation Ombudsman investigated 54 self-inflicted deaths
of prisoners serving IPP sentences.
Sham on the New Labour
Government of 2003 for introducing such an unfair,
demoralising and death-inducing prison sentence. Sham on
the legislators who enacted the IPP provisions; the
parliamentarians who voted through the Bill and, of
course, the judiciary who implemented the legislation in
such high numbers. They say the best way to gauge and
assess a democracy is to look at how the State treats
their minority groups, such as asylumseekers, immigrants
and indeed the prisoners in custody. Although it does not
qualify as a democracy, look at how China are treating
those of the Muslim faith in their country? It is ironic
how the controversial sentence of IPP was inaugurated to
prevent "serious harm" to the public, but in return, it
has been responsible for the death of scores and scores of
prisoners who were not convicted for taking the life of
one member of the public. How can that be right?
One remarkable man, however, Kenneth Clark MP QC, had
enough of the IPP imbroglio and argued vehemently for its
abolition. In personal correspondence to the author dated
8 January 2019, he said: "I was Secretary of State for
Justice in 2012, and I was responsible for the abolition
of the Indeterminate Sentence for Public Protection, which
I always thought was g disgraceful introduction into
criminal law. Unfortunately, I was not able to persuade
the Cabinet that we should change the situation of those
already serving such sentences, whose ultimate release
depends on the decision of the Parole Board". 10 [Emphasis
added]
In an act of desperation and dismay, further carefully
considered legal challenges by IPP prisoners were made to
overturn the now abolished /PP sentence, especially for
those who were still serving the contentious sentence.
Insofar as on 16 March 2016, in a landmark ruling by Lord
Chief Justice Thomas, Mr Justice Openshaw and William
Davis in R -vRoberts and others [2016] EWCA Crim 71, the
judiciary made it perfectly understandable what they
thought about the IPP sentencing regime. Whereby the Court
of Appeal refused leave to appeal out of time to 13
prisoners serving /PP sentences. At this time, the court
heard that there were still over 4,000 /PP prisoners in
custody which represented about 5% of the prison
population.
We are told, "The applicants sought an extension of time
to challenge the correctness of the sentences imposed upon
them. They argued because of the position in which they
find themselves, they [the court] should look again at the
sentence, even if at the time no-one would have thought
they were wrong in principle and manifestly excessive".
We learn the applicants advanced three compelling
arguments: Firstly, "Whatever may have been the
position at the time of the sentences of /PP were passed,
the court now had the power to pass sentences that in the
light of the intervening years, now would be the proper
sentence." The court dismissed this argument by saying
that despite the passage of time; it was not prepared to
re-sentence the IPP prisoners "because of what
happened in the penal system." Secondly, "The
applicants argued that the court should examine with
particular care where proper reasons were not given and
where young offenders were sentenced." The court dismissed
this argument also by saying: " ... it was satisfied that
each of the sentences was passed in accordance with the
statutory criteria" [Emphasis added]. Lastly, "The
applicants argued a time had been reached when the length
of imprisonment was now so excessive and disproportionate
compared to the offence that it amounted to inhumane
treatment under Article 3 or arbitrary detention under
Article 5 of the European Court of Human Rights because
the detention no longer had any meaningful link to the
offence" [Emphasis added].
Similarly, this was also given short shrift and dismissed
by the court on the basis: " ... that there was nothing to
suggest than an IPP sentence or IPP itself is a violation
of Articles 3 and 5". The Lord Chief Justice added; "if
there was a "remedy" for such cases it was not a matter of
the courts, but for Parliament". There we have it a
Grade-A knockback.
Reading between the lines, the leading judges at the
purported justice factory in the Strand were, in fact,
saying and not without due cause either if you want
justice and fairness in this matter go back to the
parliamentarians whence it came and ask them to sort it
out.
And so it was, in the Summer of 2016, 200 or more
protesters families, friends and loved ones of those in
prison up and down the country marched on Parliament to
lobby their MPs about the lamentable injustice of IPP
sentences. Bearing banners and T-shirts proclaiming:
"IPPs; The Forgotten Prisoners" and "Major Time for Petty
Crime; Free my IPP 2007-2016" they were led into the lobby
of the Houses of Parliament to see their MPs eight at a
time. While they waited inside and outside Parliament, the
protesters swopped tales of woe about the nightmare IPP
experience. One partner said: "My man was the third in the
country to get IPP and 13-years on he is still in prison".
Another added: "I am worried about my partner's mental
state; he needs to have some idea when he will get out;
it's like mental torture." One female protester exclaimed:
"My man was told he had to do certain courses then they
moved him to a prison that didn't do them". Finally,
another stated: "People don't realise, even when they get
out, it's a life sentence".
Perhaps the most poignant
case in the IPP archive belongs to that of James Ward (33)
who was arrested for having a row with his father (ABH)
and setting fire to a mattress (arson) in 2006 and
sentenced to a minimum IPP tariff of ten-months and; lo
and behold, by October 2017 he was ten-years over tariff.
In 2016 James found enough resolve to write to the BBC
Radio 4's "Today" programme and said: "Prison is not fit
to accommodate people like me with mental problems. It's
made me worse. How can I change in a place like this? I
wake up every morning scared of what the day may hold."
James was fortunate, however, as due to the tenacity of
his sister April Ward, she could see if she did not help
him raise his public profile and the circumstances of his
plight, she might never see her beloved brother again.
April's principal argument for release was that James
wasn't a risk to the public, he was only a risk to
himself, and he could, therefore, receive the appropriate
mental health care and treatment in the community. In any
event, a sister's love for her brother was. played out in
the media and James was duly released."
One of the salient enigmas of the IPP sentencing policy
was that it imprisoned offenders continually not for what
they did, but for what they might do. And once the
offender is in prison, they have to prove to the nth
degree that they are worthy of release and no longer a
risk to the public. Evidence of achieving the almost
unreachable targets of the Offender Behaviour Courses can
be seen in 2017 when there were still 3,353 people in
prison serving IPP. "552 of whom despite being given a
tariff of fewer than two years, more than half of these
(278 prisoners) have served eight-years or more beyond
their original tariff'.
Mark Day of the Prison Reform Trust reiterated these
traumatic concerns and anxieties over the plight of IPP
prisoners when he said: "The IPP continues to cast a long
shadow over our justice system years after its abolition
... without legislative action, there will still be 2,000
people caught in indefinite detention by 2020".
In January 2019, the author wrote to the Right, Hon. David
Blunkett, the brainchild of the IPP sentences who replied:
"I have been campaigning very hard with fellow
parliamentarians and with campaign groups on behalf of
individuals and families affected, to try and sort out the
aftermath of the implementation of the Indeterminate
Sentence. The original legislation was intended to ensure
that people who had committed heinous crimes would not be
released until cleared by the Parole Board but with one
significant proviso."
It was the proviso, the author believes, that was the
underlying cause of the severe problems that plagued the
legal concept of IPP. For Lord Blunkett wanted to design
and implement an indeterminate sentencing policy that
would circumvent the customary fixed-term sentences for
extremely dangerous offenders and " ... give the
individual the opportunity and the right to demonstrate
that they were no longer a risk". The plan was to
introduce Offender Behaviour Courses and therapies where
prisoners could demonstrate they were no longer a risk to
the public before being released by the Parole Board.
Lord Blunkett concedes that: "Two things went wrong".
Firstly, judges started to impose IPP sentences on those
offenders who would otherwise receive "a relatively short
term penalty". "Secondly, that when released on Parole,
minor offences would result in the courts sending the
individual back to prison, where they have to start all
over again in terms of demonstrating their fitness for
release". Lord Blunkett accepts the first was his error as
he had no control over how the judges would interpret and
implement the sentencing policy, but the second point was
absolutely nothing to do with him.
Paradoxically, it appears Lord Blunkett wanted to somehow
replace the traditional test for release by being released
in the community with an unworkable test for release in
closed conditions which were both impractical and
irrational. As unquestionably, the only test for release
must be in the community; otherwise, the test is not a
test at all and will produce false data. All in all, it is
abundantly clear the legal concept of IPP had not been
thought through sufficiently or adequately by legislators,
and it was both the prisoners and their families who had
to pay for this ginormous legislative gaffe.
Lord Blunkett for the last
decade states he has been trying to resolve what has
clearly been "a blot on our justice system". To his credit
though, Lord Blunkett exclaimed: "I am deeply sorry that
this has happened, and have said so on a number of
occasions. I hope with a bit of common sense we might be
able to resolve this matter to the satisfaction of those
affected and campaigning, and the reassurance of the
public".
The reassuring sentiments and endeavours of Lord Blunkett
to earnestly try and resolve the IPP conundrum in January
2019 were shot down in flames five months later when
another new Justice Minister Robert Buckland QC told MPs:
" ... he could not give a timescale for the release of the
remaining 2,400 prisoners serving sentences of IPP because
not all would be released." Not only was this counter to
the progressive endeavours of Lord Blunkett, but Mr
Buckland added at the tougher end of the IPP spectrum
"there will be a cohort of IPP prisoners who may never be
released because of the seriousness of the offences and
indeed the risk that they still pose."
Bizarrely, we learn the sentencing policy of IPP prisoners
has gone from being inappropriate and disproportionate at
one end of the sentencing spectrum to one of a "natural
life sentence" at the other end of the spectrum for not
breaching the most severe offences? This open-ended and
politically sensitive sentencing policy is precisely what
makes IPP one of the most egregious miscarriages of
justice in modern British criminal justice history,
insofar as the goalposts are interchangeable with each and
every new Justice Minister who takes up the position.
Alternatively, in the fall of 2019, the eminent
criminologists Doctor Harry Annison and Senior Researcher
Christine Straub produced a groundbreaking report
entitled: "A Helping Hand" in collaboration with the
Prison Reform Trust which "would examine in detail the
specific issues faced by families of IPP and what relevant
organizations can do to address them."· The main findings
in the report were that: Firstly, "The indeterminate
IPP sentence has been rightly described as one of the
"least carefully planned and implemented pieces of
legislation in the history of British sentencing," with
its long-term, damaging effects now widely
accepted." Secondly, "an HMPPS "IPP Action Group"
has been seeking to improve rates of release and
progression by people serving IPP and the release rates
have indeed increased. However, our findings suggest that,
to date, the pain and barriers faced by families of people
serving IPP have not been sufficiently addressed."
[emphasis added].
Arguably, one of the most significant barriers to release
for the IPP prisoner is the supervisory and management
role of the Probation Service who have jettisoned their
motto of "to assist and befriend" of yesteryear for the
more restrictive role of policing their charges before
consideration for release and recalling them by the
hundreds. For instance, 400 IPP prisoners were released
from June 2018 to 2019, but amazingly 600 were recalled in
the same period.
Taken altogether, both the legal concepts of Joint
Enterprise and IPP have their political, structural and
administrative problems. More specifically, we learn IPP
has the parliamentary stamp of "statutory criteria",
whereas Joint Enterprise does not. Therefore, because
Joint Enterprise was predicated on a set of beliefs over
300 years ago and has been allowed to calcify and flourish
in British law courts over the subsequent centuries. It is
respectfully argued, the legal doctrine Joint Enterprise
should be removed from all judicial proceedings forthwith,
save, of course, for those serving the sentence who should
have their sentences automatically reviewed and quashed by
the Court of Appeal.
Regarding the legal monstrosity known as IPP, it should be
abolished retrospectively as per the wishes of the Father
of the House, Kenneth Clarke QC MP and/or the IPP
prisoners should have their sentences commuted to the
fixed term penalties considered by the sentencing judge at
the time.
For it is unreasonable, unfair and irrational to keep a
person in prison for what they may do rather than what
they have done.
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