Who should be released first from Britain’s overcrowded prisons?

Is this IPP's Post Office moment? Andy Burnham may be the person to provide it

The Post Office scandal, Hillsborough, the Guildford Four- the list is long, but there is one current stain which, over the past 14 years, the government has tried to scrub clean and rearrange the furniture to hide: Imprisonment for Public Protection (IPP). The noises coming out of No.10 (North and South) indicate that perhaps now is the time that IPP will get the attention it deserves.

The latest government and public debates around a prison population at breaking-point and early prisoner release have pushed IPP into the public spotlight in a way that it has never been before and received more airtime and awareness than at any point in its twenty-year history - column inches, leading news stories, prime-time radio phone-ins - IPP is finally entering the national conversation. The debate has become one of morals and reality - the morality of who should be released and the realisation that something has to be done to reduce the weight on the prison system.

Prisons in England and Wales are running at 97% capacity, with fewer than 3,000 spare places against a population of 86,000, and behind that number sits another - a Crown Court backlog that has just reached a record 80,000 outstanding cases - nearly double what it was in 2019. The two sides of the debate go hand in hand - justice must be served and must continue to be served, and so a decision has to be made - who to release and why?

In recent days, Andy Burnham has pledged legislation to end the IPP sentence within this Parliament, promising freedom by 2029 for those still held, despite the sentence having been abolished in 2012. To have full knowledge of IPP is not an easy skim reading of the morning paper or a casual eye on the evening news - it is a complicated sentence spanning 21 years and counting.

Established in 2005 with arguably good intentions before taking on a life of its own, IPP gave a minimum term to serve, like any sentence, but no date for when someone would be released - the parole board decided whether and when you were safe for release. It was abolished in 2012 but only for new sentencing, so everyone already serving IPP stayed exactly where they were, and there are 2,271 people still held under it.

Words and abbreviations such as ‘tariff’, ‘recall’, ‘indeterminate', ‘IAPDC’, ‘VPA’, and ‘RARR’ have created a barrier to unpacking the story of IPP. But you don't need to understand these to grasp how unjust IPP is, because IPP can and must be seen as a simple case of punishment that often doesn't fit the crime.

IPP is Leroy Douglas, who at 23 robbed a man of a mobile phone in Cardiff in 2005, and who was only granted parole this month, at 44, after the United Nations declared his detention unlawful and arbitrary.

It is James Lawrence who threatened someone with an imitation pistol in 2006 - 18 years later, he is still inside. It is Abdullahi Suleman who robbed someone of a laptop in 2005 - 18 years on, he is still in prison.

And it is also Thomas White who robbed a man of a mobile phone in Manchester in 2012 - 14 years later, he is still detained.

These men (as they are mostly men) and others like them were given a sentence designed on paper to punish repeat offenders, ones who had and are likely to commit serious violent or sexual offences, but the sentence was handed down with a broad brush to anyone the court deemed ‘dangerous’.

The result has been a cohort of over 8,000 prisoners with crimes ranging from attempted murder, manslaughter, rape and sexual assault to mobile phone theft, burglary, criminal damage and a street brawl. The reason behind it is fairly straightforward. IPP was built on a single concept of ‘danger’. Once a court applied the ‘dangerous’ label to a convicted person, they stopped asking what they had actually done and started asking only whether and when they were safe to be released.

The same erasure that lets Minority Report’s Pre-crime division arrest someone for a murder they haven’t yet committed, and the same test One Flew Over the Cuckoo’s Nest’s McMurphy discovers where his fitness to leave is Nurse Ratched’s judgment to make, and hers alone.

When IPP is explained to people in these simple terms the reaction is generally an automatic attempt to justify the prisoners continued imprisonment - “they must be dangerous”, “the government wouldn’t do that without good reason”, “if they were safe they would be released”, but once that knee-jerk reaction subsides, and the reality of an injustice sinks in, people are left with a sense of being betrayed by their state, and a disillusionment that comes from a comforting explanation born from a place of trust being replaced by one that is ordinary and unsettling in its banality - the justice system can keep doing harm even when the evidence against it is overwhelming, when political reputation and institutional self-interest outweigh both evidence and justice.

IPP prisoners have a significantly raised risk of self-harm and suicide - 96 IPP prisoners have committed suicide in custody since the sentence began, and a further 44 have taken their own lives after release. If the suffering of hundreds of IPP prisoners who have served their time is going to end, there is a case that Andy Burnham may be the man to do it. He has now promised to: on 30 August he made that pledge concrete, and he has done so because he has publicly recognised it as an injustice - that IPP has left hundreds of people in prison since they were young, without any prospect of release, despite having already served very long sentences.

There is a version of Burnham’s biography that makes this more than a passing line. He has spent much of his political life on the other side of exactly this kind of institutional failure - Hillsborough, the infected blood scandal - watching what it costs people to be let down for years by the state that was supposed to protect them, and watching how long it takes that state to admit it. He knows what this looks like from the inside, before anyone in government has agreed to call it a scandal.

Every government since 2012 has managed the IPP sentence rather than replaced it - reviewed it, reformed its edges, shaved a qualifying period here and there - while thousands of people remained inside with no date to leave. Burnham is the first person with the power to end it who has also set a date, and he is fortunate not to have to invent a solution, because the opportunity has now presented itself. It took a television drama to turn years of documented wrongdoing at the Post Office into the change needed. Whether this becomes IPP’s Post Office moment depends on one unglamorous thing - whether Burnham means what he says, and what he means by it.

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Jack Mayhew is a Doctoral Researcher in Law at the University of York.

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