This article is taken from the June 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

In January, truck driver Fabian Greco pled guilty to assaulting another motorist, dislocating his jaw and leaving him unable to work for weeks. The judge was minded to send him to prison for 18 weeks, but imposed a suspended sentence instead because the government had asked judges to “relieve the pressure on the prison estates” because “the prisons are full”. 

The government denied having issued such guidance, a stance rather belied by its activation of contingency plans to lock up sentenced prisoners in police cells because of the lack of prison space.

Meanwhile, at the other end of the country, Danny Weatherson, who was convicted of attempted robbery when he was 17, was still in prison after serving 18 years of a 15 month minimum sentence. 

They turned into de facto life sentences for relatively low-level offenders, many of them non-violent.

He did not hurt anyone during the attempted robbery of a coat and a mobile phone; the reason for him spending more time in prison than many rapists is simply that he had received an imprisonment for public protection (IPP) sentence, an exquisitely cruel punishment abolished a decade ago, but which still continues to clog England’s prisons.

Between them, these two men’s vastly different experiences reflect a basic fact about the British state’s current dysfunction, namely that it manages to be cruel and ineffective at the same time. 

Whole categories of crime have become de facto decriminalised through lack of police investigation and prosecution, while petty criminals who offended decades ago are still imprisoned simply because of when they were sentenced. The state cannot imprison criminals, and yet it cannot release them either.

IPP sentences seemed like a good idea when they were introduced by New Labour as an indeterminate sentence for dangerous offenders whose crimes did not attract the penalty of imprisonment for life. 

Those sentenced to IPP sentences had to serve a prescribed minimum amount of time in prison, but would only be released — if at all — if they could convince the Parole Board that they were no longer dangerous, for instance by — in true British public sector fashion — completing rehabilitative courses in prison.

So much for the theory. Instead, they turned into de facto life sentences for relatively low-level offenders, many of them non-violent. Petty miscreants, who would normally serve a few months or years in prison, found themselves potentially locked up forever because of the way they were sentenced. Those who tried to complete the programmes required by the Parole Board often could not do so because the Prison Service did not have enough places for them. 

Absurdities abounded within the IPP regime: one man received an IPP sentence with a minimum tariff of 28 days, meaning that he could spend anywhere between a month and the rest of his life in prison. A decade after IPP sentences were abolished under David Cameron, 97 per cent of the IPP-sentenced prisoners who are still in prison — almost 3,000 in total — are past their tariff expiry date. 

Almost 200 prisoners who received tariffs of less than two years have served at least a decade over their tariff. Unsurprisingly, self-harm is rife among IPP-sentenced prisoners; at least 74 have committed suicide so far.

IPP sentences are so bad that even David Blunkett, the man who introduced them and not exactly a bleeding-heart liberal, has publicly expressed his regret for his role in its creation. Among other vocal parliamentary critics are peers such as Claire Fox and Lord Moylan, neither known for their adherence to fad causes championed by the Howard League.

No one has ever been punished at the ballot box for being too tough on criminals

The solution would seem simple enough. Allow judges to resentence all prisoners still serving IPP sentences via statute, so that the likes of Danny Weatherson, locked up for trying to rob a black-and-white cell phone shortly after the invasion of Iraq when he was too young to buy cigarettes, can turn over their prison places to more deserving delinquents. As a former lord chief justice put it (with somewhat greater eloquence), Parliament made this mess, so Parliament must fix it.

But successive lord chancellors have refused to consider this approach, even though they have all accepted that IPP sentences should not have been introduced in the first place. 

At a time of widespread public anger over crime and inadequate policing and sentencing, no politician wants to be responsible for the release of thousands of prisoners, some of whom will inevitably reoffend. Everything else being equal, it is much better politically for a crime to have been committed by someone who hasn’t been recently released from prison than by someone who has.

No one has ever been punished at the ballot box for being too tough on criminals, and this will not change anytime soon. But even those who are in favour of tougher criminal punishments — and I happily admit to being one of them — should be concerned that thousands of people are serving open-ended sentences today not necessarily because of the seriousness of their conduct, but simply because they happen to have been convicted between 4 April 2005 and 3 December 2012.