Miscarriages of JusticeUK (MOJUK)


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.