Criminal courts – Sentencing – Appeals from the Crown Court – by the prosecution

A lot has already been said about the death of Baby Peter but a lot more will be said. With feelings running understandably high we must not lose sight of what is right and fair.

One aspect that will be discussed for some time will be the rights and wrongs of the indefinite sentences handed out to those responsible.  Provisions of this kind have their origins in America and are intended to enable the courts to hand out appropriate sentences for persons who are not just first time offenders, but persistent or repeat offenders, and where the circumstances are serious.

We now learn that Jason Owen, brother of Steven Barker, will serve less than six years for his part in the death of Baby Peter.  Yesterday the Court of Appeal overturned his indeterminate sentence. 

Jason Owen, 37, was a lodger in the house in Haringey where the 17-month-old toddler Peter Connelly was tortured and battered to death. 

Earlier this year, Owen was given an indeterminate sentence with a minimum term of three years.

Lord Justice Hughes, when quashing the indeterminate sentence, said: “His present offence is deeply unpleasant because a completely innocent child whom he could have protected was not protected by him against harm by others. He displays a willingness to deceive ... which is unattractive, but to translate that into a significant risk that he will himself in the future commit offences involving death or serious personal injury to the public is ... simply a step too far.”

Lord Justice Hughes added that the important issue was “whether there was a demonstrated risk of future death or serious injury at his hands, which is what had to be shown to justify the imposition of an indeterminate sentence, which was akin to a life sentence”.

Individuals convicted of a second violent or sexual offence will normally receive a sentence of Indefinite Detention for Public Protection (IPP). This was introduced in April 2005 and replaced the automatic life sentence which could be imposed following a second serious conviction.

The use of the automatic life sentence was extremely controversial and it seems as though the use of indeterminate sentences may invite yet more controversy.

The issue of public protection and what amounts to a danger to the public is difficult to quantify and is subjective. Such debates also seem to distract us away from the loss suffered by the victim’s family.

Some of you may recall the well-publicised cases of David Walker and Nicholas Wells. The two prisoners, a sex offender and a man convicted of attempted robbery, won landmark challenges to the system of indeterminate sentences. Indeterminate sentences have no fixed end-dates.

Both were able to argue that they could not demonstrate their eligibility for release, as offending behaviour courses were not provided at the jails where they are held.

As at the end of February 2008, there were 4,000 offenders serving indeterminate sentences for public protection (IPPs) in prison establishments in England and Wales. The trends are that the figures are increasing. The figure towards the end of 2009 is now believed to be closer to 4,600 prisoners.

The court ruling against the Government and the Parole Board could leave the government with funding problems if they are expected to provide treatment programmes.

David Walker, was given an indeterminate sentence after being convicted of sexual assault. Nicholas Wells, whose 12-month minimum term for attempted robbery expired last September, both challenged their sentences.

They could not be released because their prisons did not have necessary rehabilitation courses.

Lord Justice Laws, sitting with Mr Justice Mitting, said: "To the extent that the prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger he does or does not pose, his detention cannot in reason be justified. It is therefore unlawful."

The Ministry of Justice, which is to complete a review of the operation of the sentences this month, was granted a stay on the ruling pending an appeal.

There are some who argue that indefinite sentences are being used in cases where shorter custodial sentences would seem to raise the issue of appropriateness and public protection. Between April 2005 and March 2006 collected valid tariff information on 685 of the total 707 IPPs, showed that (a) 280 had a tariff of two years or less; (b) 195 had a tariff of over two years up to three years; (c) 107 had a tariff of over three years up to four years; (d) 46 had a tariff of over four years up to five years; and (e) 57 had a tariff of over five years. 

There are also concerns about mental health issues. The Sainsbury Centre for Mental Health, a charity, claims prisoners with mental health problems, who have no automatic right to release, are not getting the support they need to leave jail.

According to Corin Williams for Community Care, the charity (i.e. the Sainsbury Centre) uncovered a high rate of mental illness among people given an Imprisonment for Public Protection (IPP) sentence. It was found that of around 4,600 IPP prisoners in England and Wales, just 31 had been released in the last year”.

Corin went on to explain “IPP is an indeterminate sentence for offenders whose crimes are not serious enough for life imprisonment, but who are considered by the court to be potentially dangerous. Offenders can only be released once the Parole Board is satisfied they no longer pose a risk to the public”.

In the meantime, Owen's time spent on remand prior to his trial will count towards his sentence, so it is estimated that he will be eligible for release in less than two years.  Many will argue that this is hardly justice for Baby Peter.

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